Preamble

The House met at Eleven of the Clock, Mr. SPEAKER in the Chair.

PRIVATE BUSINESS.

Kingsbridge and Salcombe Water Board Bill [Lords],

Read a Second time, and committed.

LONDON COUNTY COUNCIL (GENERAL POWERS) [MONEY],

Resolution reported:
That for the purposes of any Act of the present Session providing, among other things, for the extension of the powers of the London County Council under sections seventy and seventy-one of the Education Act, 1921, to include a power to provide, furnish, equip, maintain, and carry on the business of an hotel in conjunction with, or as part of, their Westminster Technical Institute situate in Vincent Square, in the city of Westminster, in connection with the supply in such hotel of education in all or any branch of the hotel industry, it is expedient to authorise the payment out of moneys provided by Parliament of such sums as may be necessary to defray the expenses of the Board of Education in respect of such grants as may become payable under the Education Act, 1921, by reason of the extension aforesaid.

Resolution agreed to.

Oral Answers to Questions — SITUATION AT BILBAO.

Mr. Attlee: (by Private Notice) asked the Secretary of State for Foreign Affairs whether he has any fresh statement to make regarding the situation at Bilbao, in view of the message from the British Consul there that the entrance to the harbour is free from mines and that the shore batteries are adequate to protect merchant shipping in territorial waters?

The Secretary of State for Foreign Affairs (Mr. Eden): The right hon. Gentleman is under a misapprehension. The message from His Majesty's Consul at Bilbao, to which no doubt he refers, was received on Wednesday last, and was in the following terms:

President of Basque Government urgently requests you should be informed food situation critical, that harbour entrance is clear of mines, that shore batteries can effectively protect merchant shipping in territorial waters, and that blockade is not effective, as since 1st April twenty-seven vessels entered into, and thirty-two cleared from Bilbao.
It will be clear from the terms of this communication that His Majesty's Consul was passing on a message from the Basque Government, and not expressing his own views.

Mr. Attlee: Do I understand that the message which came from a news agency yesterday was, therefore, entirely incorrect in saying that the message came from the British Consul?

Mr. Eden: I think there has been a misapprehension. If the right hon. Gentleman refers to the message on the tape, to which my attention was drawn, he will see that it stated that the message came through the British Consul—not from the British Consul expressing his own view. That, of course, is not the same thing at all.

Mr. Lloyd George: Have the Government taken any steps to ascertain whether the statement forwarded by the British Consul is accurate?

Mr. Eden: We are constantly receiving information from our naval authorities on the spot.

Mr. Attlee: The naval authorities, I gather, are at sea or at St. Jean de Luz. What is the information from our Consul actually in the port?

Mr. Eden: I have had a message from the Consul dealing with conditions in Bilbao, and clearly he is well qualified to express that. He is not so well qualified to express, and has not expressed, an opinion as to the conditions at sea.

Mr. Lloyd George: May I press the Foreign Secretary on this point, because it is vital? I understand that the Government communicated with the Admiral in charge of British ships in that particular part of Spanish waters. Have they communicated to him the message of the President of the Basque Republic sent through the British Consul, and have they inquired whether in his judgment it is correct or whether it is not?

Mr. Eden: We have had, as I say, a report from the Consul at Bilbao, but there are difficulties, which the House may perhaps appreciate, in confidential communications coming through from an area situated as Bilbao is now. I do not want to go into details, but hon. Members who have been in Office will appreciate what the difficulties may be. Naturally we do all we can to secure full information.

Mr. Lloyd George: What I want to find out is whether that message which came through the British Consul has been communicated to the Admiral in charge of British ships there, and whether he has been asked for his opinion on the statement made.

Mr. Eden: I beg the right hon. Gentleman's pardon; I did not understand his question. I cannot answer it without notice, but, if the Admiral is not in possession of it—I am almost confident that he will be—the information will certainly be given to him. The House will appreciate that it is the same information which the right hon. Gentleman gave in the course of the Debate on Wednesday.

Mr. Crossley: Can the Foreign Secretary confirm a report that a ship was hit yesterday in Bilbao Harbour by a bomb?

Mr. Eden: No, Sir, I cannot.

Mr. Noel-Baker: Have the Government received full reports from the naval officers on the spot, and have they received any further and more detailed information about mines, beyond that which the Home Secretary gave?

Mr. Eden: Perhaps the hon. Gentleman will put that question down; I do not think I can debate this matter at the present moment.

Mr. Arthur Henderson: Is not the statement made by the Basque Government supported by the report in the "Times" this morning that the British steamer "Brinkburn" cleared from the port of Bilbao on Wednesday last without any incident?

Mr. Eden: Nobody has ever said that no ship can get in or out of Bilbao.

Mr. Attlee: In view of the information that the system of observation is to come

into force on Monday, will a British vessel interpret non-intervention in the terms used by the Home Secretary in this House, as preventing it from going through, or will food vessels be allowed to pass?

Mr. Eden: The right hon. Gentleman's interpretation is in no way justified.

Lieut.-Commander Fletcher: What steps are being taken by the Government to bring to the notice of shipowners and shipmaster the decision of the Government that ships wishing to clear from Spanish ports will be given the full protection of His Majesty's Navy?

Mr. Eden: It has been known and made public that it has consistently been our policy that they will be protected on the high seas.

Mr. R. Acland: (by Private Notice) asked the Secretary of State for Foreign Affairs whether he has any information to confirm the report that the British merchant ship "Mary Llewellyn" left St. Jean de Luz some time in the last 24 hours to proceed to Bilbao; whether the "Mary Llewellyn" was accompanied up to the limits of Spanish territorial waters by any British warship; and whether it has been or will be an instruction to commanders of British warships in the neighbourhood of Bilbao that so far as is reasonably practicable they are to accompany up to the limits of Spanish territorial waters any British merchant ships that may desire to proceed to Bilbao contrary to the advice of His Majesty's Government?

Mr. Eden: I have only had very short notice of this Question—in fact, only half an hour—and it has not been possible in the time to make inquiries with regard to the particular case to which the hon. Member refers. On the general question dealt with in the last part of his Question, I would refer the hon. Member to the explicit statement which I made at the close of my speech in last Wednesday's Debate in reply to a specific question put to me by the right hon. Gentleman the Member for Caithness and Sutherland (Sir A. Sinclair). This, I think, covers the point which the hon. Member has in mind.

Mr. Acland: It does with one exception. Will it be, or has it been, an instruction to British Commanders on the spot that they are to go?

Mr. Eden: Of course, what I told the House on Wednesday night was the position and everyone concerned has been informed that that is the position.

Mr. Acland: Has been?

Mr. Eden: Of course.

Oral Answers to Questions — TORQUAY CORPORATION BILL.

Reported, with Amendments, from the Committee on Unopposed Bills (with Report on the Bill).

Bill, as amended, and Report to lie upon the Table; Report to be printed.

Oral Answers to Questions — SELECTION (STANDING COMMITTEES).

STANDING COMMITTEE C.

Colonel Gretton reported from the Committee of Selection; That they had discharged the following Member from Standing Committee C: Mr. Haslam; and had appointed in substitution: Rear-Admiral Beamish.

STANDING COMMITTEE D.

Colonel Gretton further reported from the Committee; That they had discharged the following Members from Standing Committee D: Sir William Alexander and Mr. Holmes; and had appointed in substitution: Mr. Grant-Ferris and Captain Macnamara.

Reports to lie upon the Table.

Orders of the Day — MARRIAGE BILL.

As amended (in the Standing Committee), considered.

NEW CLAUSE—(Restriction on the hearing of divorce cases on circuit).

Notwithstanding sub-section (5) of section seventy of the Supreme Court of Judicature (Consolidation) Act, 1925, and the rules made thereunder, no matrimonial cause, other than a cause brought under the Poor Persons Rules, shall be heard by a commissioner acting under a commission of assize or any other commission unless the Registrar shall have given a certificate certifying that the petitioner has been resident within the jurisdiction of the assize for upwards of six months or that by reason of the poverty of the parties to the cause it is desirable that the cause shall be heard by the said commissioner.—[Mr. Turton.]

Brought up, and read the First time.

11.13 a.m.

Mr. Turton: I beg to move, "That the Clause be read a Second time."
A commonly-shared view of the divorce law is that a number of divorces go through which, if all the facts were known, would not go through, and that is what this Clause is intended to stop. The present Bill will, I fear, make it more easy for divorces to go through when they should not go through unless it is subject to safeguards. At present we frequently hear of collusive adultery. If the Bill passes, there will be the additional grounds of desertion, incurable insanity and cruelty which, if they are being heard in a place where the parties are not known, may well lead to an increase in what is feared by very many people. I have a high regard for the activities of the King's Proctor. He does his duty most efficiently and with great care, but the increase of divorce work at Assizes has made his task far more difficult. In the old days, although you could have civil causes tried at Assizes, matrimonial causes were triable only in London. In 1925 an Act was passed which enabled matrimonial causes to be tried at Assizes if they were undefended, or if they were defended causes brought under the Poor Persons Rules. Within five or six years of the passing of that Act the judges found that this system was being so abused that they had to make a special rule that divorce causes which

were based on hotel evidence should be tried only in London, and that has been the rule since that time. There are two safeguards. There is, first of all, the safeguard of notoriety. People do not wish to enter the Divorce Court because of the notoriety that it gives them and, when a divorce court cause is brought in a court near where they are living, they will not bring it because of the public opinion that surrounds them and the notoriety that is given them. The other safeguard is that divorce causes must not be brought in a hole-and-corner manner.
These two safeguards are not working successfully to-day. Last month the Lord Chief Justice was trying a cause at Lewes Assizes. The petitioner used to live in Hampshire and was living, at the time when the cause was presented, in Paris. The Lord Chief Justice asked, "To what do I owe the advantage of having to deal with this rubbishy case at Lewes?" It was pointed out to him that the alleged adultery took place at a Brighton hotel, and for that reason the case was before him. That is unsatisfactory. The circuit system is being overloaded by these divorce causes. Under the 1925 Act divorce causes are not being tried by those judges who habitually try them in the Divorce Division in London. They have to be tried by King's Bench judges. That is a hardship to the King's Bench judges. It does not mean that divorce causes are any the less well tried, because King's Bench judges are quite competent to deal with them, but it is most unfair to those who are on circuit, working very long hours in order to help those who live in the circuit area to get their litigation through, to give them work that does not really belong to them. The hours on circuit are very different from those in London. The judges sit from half-past ten often till seven o'clock at night, and the increase in divorce work has been tremendous. Fifteen causes uses go through every hour. Some of these cases have no connection with the circuit, and it may well happen that some undefended cases go through which, if all the facts were known, would not go through.
One of the results of this Bill must undoubtedly be, certainly in the early stages, an increase in the number of divorce cases brought, and, unless you have the safeguard which I propose, the circuit system will be nearly unworkable.


So many people will want to bring their matrimonial causes that work of a civil and criminal nature will have to be sacrificed. The remedy that I suggest is to limit the hearing of divorce causes at Assizes first of all to poor persons' causes. No one wishes to make it more difficult for poor persons working under the Poor Persons' Rules to obtain divorce. The second reason for bringing divorce work to the Assizes is the poverty of the parties. There are causes which are not true poor persons' causes but where the parties are so badly off that the extra pound or two in witnesses' expenses may be a real bar to the obtaining of divorce. Lastly, there is the case where the petitioner has been resident for six months in the area of the Assizes. That appears to me to be a fair way of dealing with the problem. If it is a local case, if instead of a person living in London going to Manchester or Liverpool, as has been known lately, in order to get a divorce, the divorce causes at each assize town are limited to these poor people, or to cases where the parties have been resident for six months, justice will have been done. There may be objections to the Clause, and I am quite ready to alter the drafting, or to allow it to be altered in another place. It is quite likely to be open to criticism, but I commend the Clause to the sympathetic consideration of the House.

11.25 a.m.

Mr. Lewis: I beg to second the Motion.
I hope very much that the Solicitor-General will not think it necessary to oppose the Clause. If he should not do so, it will be safe to assume that there is no technical or practical objection to the proposal. Speaking as a supporter of the Bill, I hope the promoters will see their way to accept a Clause which does not in any way detract from the essential purpose of the Bill, and which, in my judgment, affords a method of checking certain abuses which have come to light under the present working of the law.

11.26 a.m.

The Solicitor-General (Sir Terence O'Connor): It may be for the convenience of the House if, on this the first Motion on the Amendment Paper, I indicate the general attitude of the Government. This is still, as it was on the Committee stage, a Private Member's Bill, and the Govern-

ment are not intervening upon any matter of policy. What guidance I can afford to the House as to detail I am here to give. But there are one or two matters on the Amendment Paper where it will be necessary for the representative of the Government to indicate a view, because only a representative of the Government can know all the facts of the situation. This is such a case. The proposal that is involved in this proposed new Clause is a proposal which completely alters the present legislative and administrative arrangements under which divorce cases are tried at Assizes, and it is my duty to tell the House what those arrangements are at present, and, why whatever be the fate of this Bill, the Government do not contemplate altering those arrangements in the sense of the new Clause.
At present, by a section of the Judicature Act, passed in 1925, divorce cases can be tried at Assizes subject to Rules of Court, and the Rules of Court prescribe the class of the case that can be tried at the Assizes and the circumstances in which cases can go to Assizes for trial. Under that Act Orders have been made, and an Order was made directing that Assizes may try undefended cases or poor persons' cases. There is another Order of the High Court which specifies that the place of hearing is to be determined by the Registrar, and there is a direction issued by the Judge, which for this purpose has the effect of law, which specifies that the Registrar must consider affidavits that are put forward by the parties in determining where the case should be tried, and the affidavits have to set forth the residential circumstances of all the witnesses and any facts which bear upon the question of whether any particular place should be chosen.
As my hon. Friend the Member for Thirsk and Malton (Mr. Turton) has said, there have, of course, been abuses of the system, and no doubt local venues have been obtained in cases where the parties desired to obscure from the more elaborate publicity of London what is, in fact, going on. Steps have been taken to improve that. The affidavits are tightened up, and, in addition to that, there has been a direction by the Court, that where the only specific charge of adultery is with an unknown woman at a hotel, an order for the venue shall direct the hearing in London. That is to avoid the sort of case referred to by


my hon. Friend which received certain animadversions by one of the learned Judges—I think it was the Lord Chief Justice—sitting at Lewes Assizes. Suppose the present Clause were passed, of course there would be a substantial limitation of the present power to try undefended cases a Assizes. The limitation to people who live in the county does not take account of the fact that by far the most important matter from the point of view of expense is where the witnesses live, and it is the place of residence of the witnesses that is of vital importance when the Registrar comes to make his decision.
There is one other matter to which it is proper to call the attention of the House. If this new Clause were passed, the already hopelessly congested lists in London would be still further congested by directing to London cases which were more conveniently and cheaply tried at Assizes. And the last observation I have to make is this. My hon. Friend said something about local venues. The jurisdiction of the Assize Courts to try civil cases is not a local one at all. It is local in criminal cases, but not in civil cases. Order 36, Rule 10, says:
There shall be no local venue for the trial of any cause, matter, or issue except where otherwise provided by Statute.
It would be rather a strange anomaly if we separated off this civil matter and said that, notwithstanding the general law on the subject, it should be a matter on which there should be a local venue and a local venue alone. For these reasons the Government cannot recommend the House to accept the proposed new Clause.

11.33 a.m.

Mr. Morgan Jones: The learned Solicitor-General has taken the occasion of this Motion to indicate what the view of the Government will be with regard to this Bill, and, if I may venture to do so, I should like, also, to say one or two words about the action of my hon. Friends officially. The hon. and Learned Gentleman said that this Bill is a Private Member's Bill. Frequently on Private Members' Bills we have to ask our friends to take an official party line in respect to them, and hon. Members will understand that quite easily. But to-day it is a matter of a different character.

Opinions are sharply divided in all parts of the House, and those opinions arise from deep religious convictions very frequently, and therefore I have been asked by my hon. Friends on this side to say that as a party we shall take no party action on this Bill at all. That is not to say that Members will not be free to express their views one way or the other on any particular Amendment, but whoever speaks on this side will be speaking in his own personal capacity, and not as representing the party.

Mr. Turton: In view of the objections that have been taken, I beg to ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.

CLAUSE 2.—(Grounds of petition for divorce.)

11.35 a.m.

Mr. Crowder: I beg to move, in page 2, line 5, to leave out paragraph (b).
This Clause enables people to get divorce for desertion after three years and we think that it will open the floodgates for many more divorces even than we have at the present time. There is one important point which I should like to raise, and in regard to which I should like to ask for the guidance of the Solicitor-General. It relates to an extract from the "Law Times" of 3rd April, 1937. The writer says:
Desertion has been interpreted by the judges in divers ways, and must necessarily vary in its form according to the particular circumstances. There is no definition which can govern all cases, and perhaps it is just as well that the definition contained in the original interpretation Clause of the Bill has disappeared with the rest of that Clause, especially as it has imported a new ground of divorce, namely, wilful and persistent refusal to permit marital intercourse … One should point out that a decree for restitution of conjugal rights, not complied with, has hitherto carried with it a finding of statutory desertion for not less than two years—this being saved from the Matrimonial Causes Act, 1884, which it is now proposed to repeal. It would seem to follow that if the wife obtains a decree of restitution, which is disobeyed, on the ground of desertion a few months before, she may, a year later, petition for divorce on the ground of desertion, the new statutory period of three years being thereby very much curtailed.
We should like some guidance from the Solicitor-General as to exactly how this Clause would work, having regard to the remarks which I have quoted. We feel


that when this Bill becomes law a good many people will seek to obtain divorce rather through this Clause than by the means which exist at the present time. Consequently, we anticipate very many more divorces, and that is why we wish to do our best to resist the Clause. There is a later Clause which, as far as I can understand it, enables people who have got a separation order, desertion being one of the reasons, to ask for the separation order to be made into divorce three years afterwards. I would point out that the danger of this is that there may be a good deal of collusion in these desertion cases, because the summary jurisdiction court is not able to call in the King's Proctor. On these grounds my hon. Friends and I do not like the Clause, and that is why we are opposing it.

11.39 a.m.

Lieut.-Commander Agnew: I beg to second the Amendment.
In Committee this Sub-section gave rise to some of the most fiercely contested parts of the Debate. From our side we resisted as far as we could the inclusion in the Bill of this fresh cause for divorce, on several grounds. It introduces an entirely new idea into our divorce laws. Until now people have been able to obtain divorce only on the ground of adultery. The promoter of the Bill stated that one of the reasons why a reform of the law is so desirable is that people who want a divorce have until now had to incur the stigma of, technically at any rate, committing adultery. Under the Bill, if it becomes law, they will be able to adopt what is alleged to be the more respectable method of seeking legal aid to undo their marriage contract, and to commit the proposed offence in this Bill, of desertion.
My hon. Friends and I object to the inclusion of desertion because if it is held to be reprehensible and scandalous to commit adultery in order to obtain a divorce, we say that it is not less reprehensible and not less blameworthy to get rid of your husband or wife by desertion in order to achieve the same object. The degree of moral obloquy is not lessened by the insertion of this new ground of divorce in the Bill. It is just as disgraceful a thing to desert your wife as it is to go away and commit adultery. Suppose that point of view is resisted by the promoters of the Bill and they do not

admit that it is true, then we oppose on another ground, and that is the impracticability of the working of this paragraph if the Bill becomes law. It is true that a later Clause provides what are believed by some hon. Members to be additional safeguards against collusion, and what is commonly called the scandal of the divorce court, but whereas it may be contended that in the case of adultery it would be possible for a judge, acting under the new powers which the Bill would give him, to probe into each matrimonial suit presented to him and ascertain effectively whether collusion had taken place, when you come to consider desertion you are faced with a new circumstance.
In desertion,whether the husband or the wife is going to leave home and reside elsewhere for three years, how are you to guard against very likely or possible collusion? How are you to prevent that desertion taking place as the result of an arrangement made between the two parties? In other words, two people after a short period of married life may decide that one is very tired of the other, or the company of one is very distasteful to the other, or there may be a mutual weariness of the married state. In any of these circumstances they might meet together in their own house and make a compact, if not a contract. Knowing full well that collusion is against the law they would take steps not to make the compact or contract a written one, and one that might possibly be produced by the King's Proctor or some other person intervening in his behalf in a subsequent suit. They would make it a verbal compact or contract, a secret compact, and, that having taken place, it would be arranged that one of the parties—it does not seem to me to matter very much which, if desertion is to be so much more respectable than the old hotel system of adultery—would desert the other, and the qualifying period of three years which the Bill sets up would have started.
How can any strengthening of the Rules of Court or any amendment of the legislative provisions governing the procedure in the High Court prevent such a secret arrangement being made between two parties? There is another significant point about this. In Committee my friends and I sought to insert in the Bill a provision that where desertion was


alleged to have taken place no decree could be granted during the period of the desertion when the deserted party was being paid money by the other party. We sought to ensure, as far as we could, that although there might be a secret arrangement, mere questions of finance and support did not come into it; that a person who was genuinely deserting the other party, although he or she did not get one penny during the period of desertion, would be determined to go through with it until the qualified period had been completed. The promoters of the Bill sternly and firmly resisted such a proposal. They said that although a woman had deserted her husband, it was still right for the man to connive at desertion by continuing payments to her. [HON. MEMBERS: "No!"] That was my impression of what the promoters of the Bill said in Committee. Apparently, not one of them is sufficiently sure of what he did say as to interrupt me and put me right.

Mr. H. Strauss: I sat through the whole of the Committee stage, and I deny that any hon. Member made any statement remotely resembling what the hon. and gallant Member has said.

Sir John Withers: The hon. and gallant Member is entirely wrong. From the moment a woman is deserted by her husband, she can apply for restitution of conjugal rights, and can get alimony immediately. There is no possible point in what the hon. and gallant Member says.

Lieut.-Commander Agnew: I do not wish to misrepresent anything which any Member said in Committee, and, if I have conveyed a wrong impression to the House, I gladly withdraw it. When alleged desertion has taken place it is open to the deserted person to apply for a restitution of conjugal rights, but under the Bill there is nothing to force such a person to take that step. The action they take may continue to be collusive over the qualifying period, after which they are able to come to the court and apply for a decree of divorce. This paragraph which it is proposed to insert in our law for the first time will lend itself to a wholly new series of abuses. I was speaking two days ago to a prominent official of the Mothers' Union. [Interruption.] I do not know why that should cause merriment. It is the first time that a

body founded for an object which every hon. Member would hold to be nothing but the most worthy, has been greeted in such a fashion. This lady with whom I was conversing informed me that the whole movement was absolutely solid in the view that, quite apart from any connection with any religious denomination, if desertion were inserted in the Bill it would have the effect of whittling down the safeguards which women believe they have when they enter the marriage state. If the Bill passes into law without this paragraph being taken out we shall be doing the reverse of what the promoters set out to do in the Preamble of the Bill, that is, to uphold the sanctity of marriage.

11.52 a.m.

Mr. Alan Herbert: Who would suppose that the hon. and gallant Member who has just seconded the Amendment voted for the Second Reading of the Bill? I find that he used these brave words:
I am of the opinion that the time has come when the House and the whole country should face up to some measure of reform of our marriage laws."—[OFFICIAL REPORT, 10th November, 1936, Col. 2112, Vol. 317.]
And ever since that day in Standing Committee we have had nothing but a continual whining and puling from the hon. and gallant Member on every Amendment which has come up for consideration.

Lieut.-Commander Agnew: Lieut.-Commander Agnew rose—

Mr. Herbert: No, the hon. Member can sit down. On every occasion the hon. and gallant Member has voted against the Bill, and I am, therefore, still wondering what he meant when he used those gallant words in the Second Reading Debate. This paragraph is the heart, the guts and the core of the Bill. It is the big principle in the Bill. In Standing Committee we had all the arguments which have been used this morning, and this same Amendment was thrown out, after a very full discussion, by 25 votes to five. I hope I shall not be expected to answer again all these rather anaemic and strange arguments put forward by the hon. and gallant Member. For 400 years there has been divorce for desertion in Scotland. In, I think, every British Dominion, and in almost every civilised country there is divorce for desertion, and without any of the evils arising of which the hon. and gallant Member is afraid. One of our divorce judges said:


Posterity would find it incredible that divorce should be granted for a single act of adultery and not when the whole purpose of marriage was frustated by terrible and permanent desertion.
The hon. and gallant Member has practically said the same thing. I really think that at this stage I need not say anything more on the Amendment.

11.55 a.m.

Mr. Barr: It is well known that the divorce laws in Scotland differ materially in many ways from the divorce laws in England, and they differ on this particular point. Since 1573 desertion has been a valid ground for divorce in Scotland. It is true that, according to the law at present, the desertion must be for four years, but in a Bill which has been introduced in another place, entitled the Divorce (Scotland) Bill, one of the proposals is to change that period to three years. That would bring the law in Scotland entirely into line with this paragraph. That was not the reason for the introduction of the Bill, but that would be one of its results. That Bill makes only one other proposal in regard to desertion, and that is in order to overcome a difficulty. Hitherto the offended party, for example, the wife, has had to say in court that she has always been willing to return. That put a premium on perjury and misrepresentation, and was asking too much of the offended party. It is proposed to remove that requirement.
After the passing of the Act of 1573, there was no startling or abrupt increase in the number of divorces. It is a mistaken idea that divorce reform will always lead to an increase in the number of divorces, for it will not; and I think it has been proved by the experience in Scotland that it will not in the case which we have in view. Nor has Scotland suffered as a result of desertion being a ground for divorce. I think I may say that the rate of divorce in Scotland has never exceeded 2½ per cent. of the marriages effected in a single year, and that altogether there has been no evil result to which one could point as a reason for not making desertion a ground for divorce.
The hon. and gallant Member for Camborne (Lieut.-Commander Agnew) spoke of collusion. We know that collusion is comparatively easy in the case of

adultery. Reference has been made to collusion in the matter of adultery in hotels. But a prolonged and difficult collusion extending over three years would be very hard to carry through unless there were a very sad reason behind it. One of the hon. Members who spoke in support of deleting the paragraph indicated that this is a way of getting divorce respectably without the odium attaching to adultery. I do not see why there should not be a means of getting divorce respectably if it accords with the facts. The period of three years desertion seems to me to be a sufficiently lengthy one, although four years has been the length of time stipulated in Scotland. I grant that the courts will have to watch this matter carefully. It may be that the offending party, let us say the husband, by his cruelty and actions will contrive to force on the offended party the onus of deserting him. Therefore, it is for the law courts to exercise great care in this matter.
Hon. Members will understand that in taking up this position, it is not because I do not maintain the sanctity and solemnity of the marriage bond. I enjoin that on all who come before me in entering into the married state. I may say that the Presbyterian Confession of Faith—The Westminster Confession—contains words which do not greatly differ from those used on this subject in the Church of England prayer book. I will not quote those from the Church of England prayer book, because they will be familiar to hon. Members and they have often been quoted in the course of the Committee proceedings. Our words are:
Marriage was ordained for the mutual help of husband and wife; for the increase of mankind with a legitimate issue, and of the Church with an holy seed, and for preventing of uncleanness.
If I did not think that we should prevent an increase in the last evil by the passing of this paragraph, I would not be supporting it to-day. I do not believe we should encourage in any way the idea that marriage is a state to be entered into or quitted lightly. As one of the greatest of our Scottish poets, Sir Walter Scott, said:
Love flows like the Solway,
But ebbs like its tide.
When it has ebbed for three or four years, I think there is a great deal to be said for action such as is here proposed.

12.2 p.m.

Mr. Crossley: I hope the hon. Burgess the Member for Oxford University (Mr. Herbert) will not consider the few remarks which I intend to make as being in any way obstructive or biased. I have always had the utmost respect both for his conduct of the Bill upstairs and for the motives which impelled him to introduce it, and I trust he will have the same respect for the opposite views which I have consistently maintained. The fact that Clause r remains in the Bill makes a very material difference to my view of the Bill as a whole. I undertake for myself and on behalf of my hon. Friends who oppose the Bill on the same grounds as I do, that we shall not indulge in any obstruction to-day.
With regard to the Amendment, I want hon. Members to realise what they are doing. They are deliberately granting divorce for incompatibility. Up to now divorce has been granted for incompatibility only by a very complex and disagreeable fiction, that of hotel divorce, in which adultery might even not occur. I am not saying whether adultery or desertion is the worse cause for divorce. If the House wishes to know, I think that desertion is probably a more reasonable cause for divorce in many cases than adultery, but that is merely a matter of opinion. At a time when the House is making earnest efforts to take away collusive adultery as a cause for divorce—and I believe that one Amendment which has been accepted may really have the effect of achieving that—they are at the same time introducing here collusive desertion as a cause for divorce. My hon. and gallant Friend the Member for Camborne (Lt.-Commander Agnew) referred to an Amendment which we moved in the Committee. If I may say so with respect to the hon. Member for Oxford University, I am not always wrong. We did not desire to inflict financial hardship on anybody as a necessary means of getting a divorce in this case. What we said was that if there was genuine desertion, it was always open to the victim of that desertion to get proper provision by applying to the courts.

Mr. Macquisten: Why should people build up lawyers' bills? Why not allow people to make their own arrangements if they can?

Mr. Crossley: I do not regard lawyers only as people to be avoided. I regard the law courts, of which lawyers are an important administrative part as a great safeguard not only for private individuals but for the code of morals of the country. In cases of this kind it is more desirable that people should go to court and get the necessary grants of alimony or maintenance than that they should make private arrangements for what the hon. Gentleman opposite called "respectable divorce"—a phrase which, if he will allow me to say so, I abominate. That is one of the reasons why I feel that this paragraph is the most undesirable thing which the Bill contains.
There is another reason. I am afraid of the effect of this paragraph on the children of a marriage. For the children of a marriage there is no worse divorce than the friendly divorce. That is the divorce where two people part because they do not like each other. Although they are quite amicable, they do not want to continue living together and the children, by arrangement, visit each parent in turn, and perhaps spend one half of the year with the one parent and the other half of the year with the other parent. They grow fond of each parent individually and they grow up to think of marriage not as a sacred thing but merely as a convenience. They think to themselves as they grow up, "If I do not like my wife, I can do as my father and my mother have done". I think that is a terrible danger. I know many couples, whose children respect both the father and the mother, but who entered into marriage with this idea that it is temporary and not permanent. That is the main and principal reason why I object to this paragraph. There is one further reason which is well explained in the Minority Report of the Royal Commission in the following passage:
One of the strongest reasons for not allowing desertion and cruelty as good causes for divorce is the ease with which they may be utilised for the dissolution of marriages of which the parties have simply grown tired and mutually desire to make an end. It will be remembered that experience in the United States emphatically confirms the reality of this danger, the recognition of which has been a main factor in producing the recent demand for reform to which we have already referred.
If we go through history, and examine developments in this matter country by country—in the Roman Empire, in


Mohammedan Islam in its great days, in France, in America—we find that a period of decline has always been a period when divorce became easier and that the easier divorce became the more freely it was practised. The hon. Member for Oxford University may say that the object of the Bill is that divorce should not be practised more freely and I am aware of his position in that respect. It is the main thing which he can say in favour of the Bill. But the easier the practice of divorce in a country, the quicker that country declines, and I do not believe that this Bill with this paragraph in it can be said to be mainly a Marriage Bill. I still regard it as mainly a divorce Bill.

12.12 p.m.

Viscount Wolmer: I cannot agree with my hon. Friend that this issue is materially affected by the presence of Clause 1 in the Bill. I believe statistics prove that the time when marriages are most likely to break down, the period at which the greatest number of divorces occur, is, on the average, about ten years after marriage. Therefore, this issue is not materially affected by the provision that there shall be no divorce for five years after marriage. I was sorry that my hon. Friend the Member for Oxford University (Mr. Herbert) treated the supporters of this Amendment with the impatience which he showed during his short speech. The hon. Member's language will be interpreted outside by those who oppose this provision, as a very curt and summary and, if I may say so, inadequate defence of an important Clause of the Bill. My hon. Friend must remember that we had not all the privilege of sitting upstairs in the Committee, and certainly, public opinion has not been able to follow all the points, with which he, no doubt, is familiar. But, to my mind, this is one of the most unfortunate, and, indeed, objectionable parts of the Bill.
No doubt every Member of the House has viewed this Bill with mixed feelings and with great perplexity. We all admit the evils of the present situation, but we cannot disguise from ourselves the fact that this proposal is a tremendous departure in the law of England. I confess I am not over-impressed by the point as to marriages in Scotland. I do not want to say anything disrespectful about the Scottish nation, but I think it is impossible to contend that the standard of matrimonial success is greater in Scotland than

it is in England. The Bill introduces a fundamental change in the marriage law of this country. What my hon, Friend is trying to do, is much the same as the action of a statesman who engages in depreciation of the currency. He may get out of difficulties for the moment and he may improve the immediate situation, but those who come after him will suffer. If divorce is facilitated in this manner, future generations are liable to suffer very severely, and particularly the children of future marriages.
We cannot get away from the fact that the Bill will increase enormously the number of divorces. Will that be a good or bad thing for this country? I say it will be a bad thing. All the hard cases in the world will not outweigh the enormous importance of encouraging, by every means within the power of the law, that mutual tolerance and forbearance which is the essence of matrimony. We do not want to make it easy for people to get divorce. It is better, in the long run, to have hard cases than to lower the standard of marriage or encourage people to enter into matrimony lightly. That, to my mind, is the greatest evil in this proposal. If you once get away from the idea, the public idea, that marriage is a permanent bond, then you are going to encourage a great number of marriages that never ought to be entered into. Those are the marriages that make the hard cases. So you are on a slippery slope, for surely all experience in every other country has proved that one divorce Act leads to another. My hon. Friend the Member for Oxford University has been perfectly candid in this matter. He has not pretended that this Bill as it stands satisfies him. He is perfectly free to restart his agitation for widening the grounds of divorce, and I recognise that a large number of people agree with him.
You will not get rid of hard cases by this particular provision. You are entering on a slippery slope and this Bill will simply lead to further Bills. Therefore it seems to me that this particular provision in this Clause is one which we ought to resist to the utmost. I am sorry to do so because I recognise that there are very distressing cases, and I recognise that the present state of the law is exceedingly unsatisfactory, but if this door were opened we should not


be solving the problems and we should be lowering the standard of matrimony. At the present time the law, with all its failings, is that the marriage cannot be dissolved unless there has been a breach within the marital bond. I do not think that three years desertion can possibly come under that category. To my mind the period is a great deal too short. I do not think it would be possible to name satisfactorily any definite period of years, but I am certain that three years is a great deal too short a time, in spite of the remarks of an hon. Friend who spoke about Scotland just now. Under the Scottish law the period is four years. There we see the process of marriage law reformers desiring to reduce the period, and there is no guarantee that in a few years time we shall not be asked to agree to two years desertion.
Three years is altogether too short. If it were something like seven or ten years there would be more to be said for it. I say deliberately that I do not want to make the breaking of the marriage bond easier. I am not approaching the problem from the same angle as some of my hon. Friends. If you grant these facilities you get the idea into the heads of people that after a three years desertion the marriage can be broken and you are lowering the whole public idea in regard to marriage. Thereby you are encouraging a great number of marriages that ought never to take place; you are encouraging people to enter lightheartedly into matrimony; and you are inflicting a grave injury on the public and private life of this country.

12.19 p.m.

Mrs. Tate: The Noble Lord said that in his opinion the case would be entirely different if we granted divorce after desertion of seven or ten years.

Viscount Wolmer: I said I thought it would be better, but I do not think it would be entirely different.

Mrs. Tate: Under the Bill no divorce will be possible for at least five years, and in the present congested state of the courts no divorce will in actual practice be possible for at least six years. The Noble Lord, the hon. and gallant Member for Camborne (Lieut.-Commander Agnew) and another hon. Member who has spoken have laid far too much stress

on what they call collusive divorce. The number of collusive divorces, however regrettable they may be, is very much the smaller number of the divorces that take place. Never was that more certainly the case than in the case of divorces for desertion. The number of people who are going to be willing to get together and agree to part as a solution after desertion for three years is an infinitesimal proportion of the people who seek relief from the marriage bond in this country. We are not asking the House to legislate for easy divorce. We are not seeking to take a step by which marriage can be easily dissolved. We are only asking the House to recognise the fact that where a marriage has in actual fact broken down the country can give freedom to the partners.

Viscount Wolmer: Does the hon. Lady really think that three years' desertion means that the marriage has absolutely broken down?

Mrs. Tate: If one of the two partners to the marriage has left the other partner with the intent to desert for a period of three years, curious as the noble Lord may consider it, I consider that those people have parted and that the marriage has broken down. It may seem a very singular idea, but if the noble Lord had spent as much time as I have on the bench trying these unhappy cases from the poorer parts of London, he would have no illusions as to whether these marriages have in actual fact broken down. All that we are asking the House to do is to give relief where marriage in fact no longer exist It has been far better put by a clergyman, a Canon of St. Paul's, who a short time ago wrote to the papers on the subject, and said,
If the bonds are broken, if the happy relationship of love and confidence is destroyed and cannot be re-established, if the home becomes a hell, if one partner repudiates his responsibility and leaves the other to face life alone, the re is no Christian marriage. To pretend that there is does not uphold an ideal, nor does it endanger the ideal by smashing the shell from which the substance has departed
That is what we are asking the House to do to-day. The hon. and gallant Member for Camborne said that we were introducing a wholly new idea. I can well understand what torture that must be to him. But if it is a new idea it is one which the country as a whole is


anxious to see brought into force. It was not considered a new idea by the Royal Commission which reported in 1912, and I hope that the House will give it support to-day.

Lieut.-Commander Agnew: I understood the hon. Lady to say that under the Bill no one can get divorce on the ground of desertion within five years. Is that under Clause 1? My impression is that couples who are married can start a three years' qualifying period as soon as the Bill becomes law.

Mrs. Tate: The hon. and gallant Member is quite right in that supposition. But these people have been married for some time. I said that no marriage could be dissolved for at least five years. People who are married and have been married for a long period of time and are deserted can start divorce proceedings after three years, but we all know that in actual fact they will not get a divorce for at least four years.

12.25 p.m.

Commander Bower: The House will realise the sincerity of the hon. Member for Frome (Mrs. Tate), who has just sat down, but it will also realise that some of us feel just as strongly on this question as she does, and the last two or three speeches has brought home forcibly to me how wide is the gulf which divides us who oppose the Bill from the promoters. Those for whom I speak take an entirely different view of what marriage means. We admit that in recent years the question of marriage and divorce has progressed down a slippery slope from the purely religious and ecclesiastical idea of complete indissolubility to the purely temporal idea of an almost casual alliance and we regret that that has taken place. We think that we should do very much better to get back to where we were before, 1835 or 1857, but things being what they are, we realise that people have got the purely temporal conception of marriage into their heads, and it is no use blinking the fact that it will stay there. All that we can do is to try to minimise the ghastly results of easier divorce, because nobody can pretend that this Clause will not make divorce so much the easier for a great many people. The hon. Lady seemed to think there was something half-witted in thinking that three years' desertion was not a reasonable cause for divorce.

Mrs. Tate: The hon. and gallant Member must not misrepresent me. What I said was that it was a curious idea not to consider that where there had been desertion for three years, the marriage had not broken down.

Commander Bower: I must say that I differ there, and part of my difference is due to the fact that this definition of desertion has been interpreted in such widely different ways by different people. In Committee on the Bill I referred to the question of a seaman who went abroad and disappeared. Since then I have made certain inquiries, and I have been informed on very good authority that there are very many cases where a young married man thinks he can do better in some foreign country, notably the United States, than he can here, goes abroad, and quite genuinely tells his wife that when he has made good and made a home for himself out there, he will send for her. He gets away into the States, things go badly with him and he does not succeed. All hon. Members who have been abroad much will know how very remote this country, and even one's own interest in this country, appear when one has been away for some time. There is, I believe, a large number of those cases. That man, with all the good will in the world, may be held after a year or two to have deserted his wife, and indeed has done so, but there are many cases in which eventually he does succeed in making good and comes back, and I think it is wrong to regard those cases as of no account. The learned Solicitor-General, in replying to me, said that a man who had deserted his wife for that period was not much to be regarded. I agree, if it is done deliberately, but that does not alter our point that on the whole any extension of the grounds for divorce is bound to create more hard cases than those that it cures.
That is absolutely fundamental with us. We regret all through that this temporal conception of marriage has come to stay, and everything that we can do will be devoted to bringing back the old conception of an indissoluble union. Why on earth do people go into church and take these solemn vows, the most solemn they are able to take, and with apparently the intention of breaking them for comparatively minor reasons. [HON. MEMBERS: "No!"] It is perfectly true. Every Member of this House must be


horrified by seeing accounts of these fashionable weddings, with hundreds of pounds spent on flowers, music, and all the rest of it, with children dressed up in fancy dresses as bridesmaids, and then, within a year or two, these people get a divorce who have promised "for better, for worse, for richer, for poorer, till death us do part", they do not say "till death or Mr. Justice Langton us do part", or "till death or three years' desertion us do part." They take a solemn oath, in the presence of the Almighty. Then the promoters of this Bill come along and propose that that solemn oath is to be broken on comparatively trivial grounds. I say "comparatively trivial" because everyone knows what misery and hardship you get in special cases, but hard cases make bad law, and since when has it been held in this country that adult, grown-up, responsible people are unable to enter into a mutual contract and, above all, a contract of this solemnity? If we want that sort of thing, let us have a different ceremony, an entirely civil ceremony, and leave the Church out of it, and let people enter into an alliance which from the beginning they consider is to be only temporary and to last only as long as one or other of the parties thinks fit to stick to the bargain.

12.32 p.m.

The Solicitor-General: It is necessary that I should say a word in regard to the only point of legal substance that, so far as I am concerned, was raised by my hon. Friend the Member for Finchley (Mr. Crowder). That was a suggestion that has been repeated on the authority of a legal newspaper, in regard to the procedure whereby a decree of restitution of conjugal rights has for some purposes the same effect as two years' desertion. The position is whether under those provisions the procedure of restitution of conjugal rights would enable the parties to shorten the period of three years laid down in the Bill. There is no justification for that view at all. The position in a nutshell is that down to 1884, disobedience to a decree of restitution of conjugal rights was punishable as contempt of court. That Act made it no longer a punishable offence, and since the time of that Act disobedience of a decree has been treated by virtue of Section 5 of

that Act as equivalent to two years' desertion for the purpose of getting a judicial separation. The effect of that as regards divorce was maintained by Section 176 of the Act of 1925, and the effect of that as regards judicial separation was maintained by Section 185, Subsection (1) of the Judicature Consolidation Act, 1925. Both those sections are being repealed in the present Bill, so that the effect of a restitution decree as creating the offence of desertion, can no longer be relied on by the parties under this Bill. I think that that is the only point of law which emerges.

12.34 p.m.

Mr. Cartland: I am sorry to detain the House after so many speeches have been made on this Amendment, but I am sure they will agree that this is really the most important Amendment to the Bill. A number of us took a certain line in Committee upstairs, and much as we regret having to continue to speak here, we would not wish the House to vote until we have thoroughly thrashed out the point.
I take the view of my Noble Friend the Member for Aldershot (Viscount Wolmer) that the insertion of Clause I in the Bill has not affected the way in which I regard these new provisions. Of the new provisions, the most dangerous and the worst is that in paragraph (b). I also agree that there is, obviously, a big difference of opinion between those who are promoting the Bill and those who are opposing it, for we look at the whole question from entirely different angles. This paragraph will start in the minds of the public a new outlook and a new habit of thought with regard to marriage and divorce, and while I can see that there are good reasons to be advanced in support of paragraphs (c) and (d), I do not think we have had good reasons in support or paragraph (b).
My hon. Friend the Member for Frome (Mrs. Tate), who has taken such an active part on this Bill, advanced the contention of the congestion of the courts and said that, in consequence, desertion would have to be five or six years before a person could eventually obtain a divorce. The answer to that is that we ought to reform the procedure of the courts in order to get out of the congestion and


not to rely upon the congestion to extend this three years to five, six or even more years. She quoted with great effect a statement of the Dean of St. Paul's with regard to Christian marriage having broken down. The important point is that a Christian vow has been taken. Surely if a Christian vow is taken, it remains, and nothing can break the solemnity with which it is taken. Circumstances may persuade people to a certain course of action, but that does not entitle them to depart from the actual Christian vow which is taken in marriage.
We are told that the four years period which operates in Scotland is to be brought down to three years in order to bring it into line with this Bill. I agree with my noble Friend when he asks where we are going to stop. The four years has worked very well in Scotland, and we have not been told why it is being reduced to three. The only argument that was advanced in Committee was that we ought to make the Scottish law conform to this Bill. Why not make this Bill conform to the Scottish law?

Mr. Dingle Foot: Is the hon. Gentleman aware that there has recently been an inquiry into the Scottish marriage law? Speaking from recollection, it is due to that inquiry that this reform in the Scottish law is being made.

Mr. Cartland: I am obliged to the hon. Gentleman for giving an answer to a question that has frequently been asked. The Bill which is to give effect to that change, however, is a private Member's Bill in another place, and I should have thought that that, if it were so important to make the reform, the Bill would have been brought in by the Government. I raised in Committee the point mentioned by my hon. and Gallant Friend the Member for Cleveland (Commander Bower) about the man who goes abroad and has no intention of wilfully deserting his wife but who, after having been abroad a certain number of years, is asked to return, but does not wish to do so because of his business obligation and so on. What is to prevent the wife under the Bill bringing a petition for desertion because she feels that the man should return to her?

The Solicitor-General stated in Committee that that case was covered by the Definition Clause, and naturally we accepted that, but the Definition Clause has now been removed. We ought, therefore, to have an answer as to how that case is met. It is not a case of wilful desertion, and we are giving too dangerous powers to a petitioner if we allow her to go to the courts in such a case. I do not think we can advance any further reason why this Amendment should be carried which is likely to convince the House, because I feel that the House has already made up its mind, and that hon. Members who are opposed to the Amendment look at the Bill from a point of view to which we are entirely opposed, and which, therefore, we shall never be able to reconcile. I regret it, for I feel that we are opening the door wide, and that the time will come when we shall deplore the action we are taking.

Mr. De la Bère: Mr. De la Bère rose in his place, and claimed to move, "That the Question be now put," but Mr. SPEAKER withheld his assent, and declined then to put that Question.

12.42 p.m.

Mr. Pritt: Hon. Members have referred to the sanctity of the Christian vow and have tried to invoke the analogy of the law of contract. When people enter into a Christian or any other vow, they are entering into something mutual, but what this Bill seeks to do is not to give them leave to break that vow, but to lay down what will happen when one has broken it and the other has not. In the case of a legal contract, if one party fundamentally breaks it, you do not even need litigation to decide it.

Commander Bower: I was using the word "contract" as a layman, and I had no intention of drawing an analogy, because my legal knowledge is not sufficient to do so.

Question put, "That the words proposed to be left out stand part of the Bill."

The House divided: Ayes, 118; Noes, 39.

Division No. 141.]
AYES.
[12.45 p.m.


Acland, R. T. D. (Barnstaple)
Astor, Hon. W. W. (Fulham, E.)
Batey, J.


Adamson, W. M.
Attlee, Rt. Hon. C. R.
Beit, Sir A. L.


Ammon, C. G.
Balfour, Capt. H. (Isle of Thanet)
Bevan, A.


Apsley, Lord
Barr, J.
Blair, Sir R.




Bowyer, Capt. Sir G. E. W.
Jones, Morgan (Caerphilly)
Petherick, M.


Brooke, W.
Kennedy, Rt. Hon. T.
Pethick-Lawrence, F. W.


Brown, C. (Mansfield)
Knox, Major-General Sir A. W. F.
Ponsonby, Col. C. E.


Campbell, Sir E. T.
Lathan, G.
Potts, J.


Cassells, T.
Law, R. K. (Hull, S.W.)
Pritt, D. N.


Cazalet, Thelma (Islington, E.)
Leckie, J. A.
Quibell, D. J. K.


Cazalet, Capt. V. A. (Chippenham)
Lee, F.
Ropner, Colonel L.


Channon, H.
Lewis, O.
Rowson, G.


Charleton, H. C.
Llewellin, Lieut.-Col. J. J.
Russell, A. West (Tynemouth)


Clarke, Lt.-Col. R. S. (E. Grinstead)
Mabane, W. (Huddersfield)
Sanderson, Sir F. B.


Clarry, Sir Reginald
Macdonald, G. (Ince)
Selley, H. R.


Daggar, G.
McEntee, V. La T.
Simon, Rt. Hon. Sir J. A.


Dalton, H.
McGhee, H. G.
Smith, Ben (Rotherhithe)


Day, H.
Macquisten, F. A.
Smith, E. (Stoke)


Denman, Hon. R. D.
Makins, Brig.-Gen. E.
Sorensen, R. W.


Dobbie, W.
Manningham-Buller, Sir M.
Southby, Commander A. R. J.


Dower, Capt. A. V. G.
Margesson, Capt. Rt. Hon. H. D. R.
Strauss, H. G. (Norwich)


Duckworth, Arthur (Shrewsbury)
Markham, S. F.
Sutcliffe, H.


Duggan, H. J.
Mathers, G.
Tate, Mavis C.


Ede, J. C.
Maxwell, Hon. S. A.
Taylor, Vice-Adm. E. A. (Padd., S.)


Edwards, Sir C. (Bedwellty)
Mayhew, Lt.-Col. J.
Thorne, W.


Elmley, Viscount
Mellor, Sir J. S. P. (Tamworth)
Thurtle, E.


Fletcher, Lt.-Comdr. R. T. H.
Mills, Major J. D. (New Forest)
Turton, R. H.


Fool, D. M.
Montague, F.
Viant, S. P.


Gibson, R. (Greenock)
Morrison, G. A. (Scottish Univ's.)
Watkins, F. C.


Gluckstein, L. H.
Morrison, R. C. (Tottenham, N.)
Wayland, Sir W. A


Green, W. H. (Deptford)
Muff, G.
Whiteley, W.


Griffiths, G. A. (Hemsworth)
Naylor, T. E.
Williams, H. G. (Croydon, S.)


Groves, T. E.
Neven-Spence, Major B. H. H.
Wilson, Lt.-Col. Sir A. T. (Hitchin)


Hall, G. H. (Aberdare)
Noel-Baker, P. J.
Windsor, W. (Hull, C.)


Heilgers, Captain F. F. A.
O'Connor, Sir Terence J.
Wise, A. R.


Henderson, T. (Tradeston)
Oliver, G. H.
Withers, Sir J. J.


Hills, Major Rt. Hon. J. W. (Ripon)
O'Neill, Major Rt. Hon. Sir Hugh
Watt, G. S. H.


Hopkin, D.
Paling, W.



Harvey, T. E. (Eng. Univ's.)
Parker, J.
TELLERS FOR THE AYES.—


Jenkins, Sir W. (Neath)
Penny, Sir G.
Mr. De la Bere and Mr. A. P.


Jones, A. C. (Shipley)
Perkins, W. R. D.
Herbert.




NOES.


Allen, Lt.-Col. J. Sandeman (B'kn'hd)
Grattan-Doyle, Sir N.
Rickards, G. W. (Skipton)


Briscoe, Capt. R. G.
Greene, W. P. C. (Worcester)
Ritson, J.


Brocklebank, C. E. R.
Grettor, Col. Rt. Hon. J.
Ross Taylor, W. (Woodbridge)


Burton, Col. H. W.
Griffith, F. Kingsley (M'ddl'sbro, W.)
Stuart, Lord C. Crichton- (N'thw'h)


Cartland, J. R. H.
Grimston, R. V.
Tinker, J. J.


Cooke, J. D. (Hammersmith, S.)
Gunston, Capt. D. W.
Tufnell, Lieut.-Commander R. L.


Crooke, J. S.
Haslam, H. C. (Horncastle)
Ward, Lieut.-Col. Sir A. L. (Hull)


Crossley, A. C.
Holmes, J. S.
Ward, Irene M. B. (Wallsend)


Crowder, J. F. E.
Hume, Sir G. H.
Waterhouse, Captain C.


Denville, Alfred
Hurd, Sir P. A.
Wells, S. R.


Evans, Capt. A. (Cardiff, S.)
Loftus, P. C.
Wolmer, Rt. Hon. Viscount


Everard, W. L.
McKie, J. H.



Ganzoni, Sir J.
Nicholson, G. (Farnham)
TELLERS FOR THE NOES.—


Grant-Ferris, R.
Remer, J. R.
Commander Bower and Lieut.




Commander Agnew.

12.52 p.m.

Mr. Lewis: I beg to move, in page 2, line 9, after "with," to insert "persistent."
The effect of this Amendment would be to make paragraph (c) read:
has since the celebration of the marriage treated the petitioner with persistent cruelty.
I have up to this point consistently supported this Bill, but, like most Members of the House, I have had a great many letters from constituents objecting to it. As far as I can make out, the majority of those letters are prompted by the fear which many people have that in operation the Bill will prove to be far wider in scope than its wording would suggest or, indeed, than its promoters desire. In particular, there is a widespread apprehension that the provisions of the Bill will

make collusive divorce proceedings much easier than they are at present. It is common knowledge that under the existing law collusive proceedings for divorce are taken from time to time, and undoubtedly they are sometimes successful, although the procedure is very unpleasant for the parties and makes is sometimes difficult for them to arrange collusive proceedings. I submit that as this paragraph is worded at present, without the introduction of the word "persistent," such collusive proceedings, though they would undoubtedly still be unpleasant to the parties, would obviously be made a great deal easier.
I do not think it is necessary to give examples. Hon. Members will realise that it would not be a difficult thing for two parties living together to "fake" a


single case of cruelty. If the word "persistent" is included the position becomes very different. It would be very difficult to frame up sufficient cases of cruelty, with the necessary witnesses and so forth, to constitute persistent cruelty. On that ground alone, which I think we all share, it is desirable to insert the word "persistent" in order that we should do nothing to make collusive divorce proceedings easier.
There is a further aspect to consider. The marriage contract is a very solemn thing. It affects not only the parties to it but, if there are any children, it seriously affects those children, too. Would it be wise that, because of one moment of anger or bitterness, which may be very greatly regretted afterwards, as a result of which one act of cruelty takes place, the whole of that marriage should be annulled? I do not know what view the promoters take of this Amendment. I was surprised to see that this question was not raised in the Committee proceedings. I was not a Member of the Committee; and I do not know the reason for that. I urge the promoters to see that the addition of the word "persistent" does not interfere with the purposes of the Bill, but it would greatly reassure many people as to the scope of the Bill. I do not believe that hon. Members whose names appear on the back of the Bill, and others who support it, would desire to make collusive divorce proceedings easier. Their only desire is to carry out the purpose of the Bill which is evident in its wording. This, Amendment could do no harm, but much good.

12.58 p.m.

Mr. Turton: I beg to second the Amendment.
I do not believe that the promoters of the Bill will accept it. One of the arguments which the Mover of the Amendment has not used seems conclusive in its favour. To get a separation order under the Summary Jurisdiction Act, persistent cruelty has to be proved. That provision is not being attached to the Bill. If we pass the Clause unamended the poorer person who goes to the court of summary jurisdiction will have to prove persistent cruelty, while another who uses the divorce court will be able to get a divorce, a far greater remedy, by merely proving cruelty. I think hon. Members will agree that the Bill requires

Amendment, otherwise a nonsensical position will be created.

12.59 p.m.

The Solicitor-General: There seems to be some misunderstanding in regard to this matter. The hon. Member for Colchester (Mr. Lewis) seemed to think that one simple act of cruelty could be grievous enough to result in a decree, but that is not the basis of the law of cruelty. Cruelty has been defined, and I want to read to the House the authoritative definition of legal cruelty, which is not interfered with by the Bill:
Legal cruelty is conduct of such a character as to cause danger to life and limb or health, bodily or mental, or such as to give rise to a reasonable apprehension of such danger.
Suppose that that resulted from one act, perhaps the House might desire that that act should be a ground for divorce. It is noteworthy that no division was taken upstairs on the general principle of cruelty being a ground for divorce. It was conceded that if there is any additional ground to be given for a divorce, it ought to be cruelty. For that reason I would recommend the House not to limit the words of the Clause in the sense which the hon. Gentleman wants.
What was said by my hon. Friend the Member for Thirsk and Malton (Mr. Turton) was true, that the Summary Jurisdiction Act, 1895, contains the words "persistent cruelty." One of the reasons is that it was passed before the definition of cruelty which I have read to the House was given in the Russell case, in 1897, and the order is that in the Summary Jurisdiction Act you are dealing with matters which are isolated and separate. You are giving a summary remedy for things like sudden assault or aggravated assault. Those isolated matters are not quite on the same footing as matters in a suit for cruelty in a divorce court. The promoters of the Bill are not in any way altering the existing definition of the words "legal cruelty," the very stringent definition of which covers all the point. It is difficult to imagine a case in which one party would collude with another in a way which involved danger to life, limb or health.

1.4 p.m.

Viscount Wolmer: I take it that the speech of the Solicitor-General is so satisfactory to the promoters of the Bill, and


so entirely represents their point of view, that they think there is no need for them to deal with the matter. If that is the case, I am amazed at the attitude of the promoters of the Bill and of the Solicitor-General on this matter. I was not familiar with the definition of cruelty, but I listened as carefully as I could to what the hon. and learned Gentleman said. I understand that cruelty has been legally defined as conduct which endangers life or limb or health, or may be supposed to have that result. Therefore a single outburst of passion comes within that definition and, indeed, the Solicitor-General admitted that that was the case. I ask the House to pause one moment to consider what it is doing with the marriage laws of this country. By a single outburst of temper you are now proposing to enable a divorce to be obtained. I submit that that is a most serious matter. Let us never forget, when we are dealing with this question, that we are engaged in forming public opinion, and not only public opinion, but legal opinion. I do not think that anyone who has had experience of our courts would say that it is possible for the courts of law in this or any other land to maintain, in regard to a particular subject, an attitude which bears no relation to the state of public opinion, and my point is that, in influencing and forming public opinion, as we are bound to do by the passage of this Measure, we shall also influence the interpretation that the courts of law may be expected to put on an Act like an act of cruelty.
When I saw the Amendment, I assumed as a matter of course that the promoters of the Bill would accept it, and I am amazed that they have not. If they had accepted it, it would, I should have thought, merely have been in accordance with common sense. As has been pointed out, it is necessary to prove persistent cruelty in order to get a judicial separation. The definition that has been put into the Bill would not be sufficient to get a judicial separation.

Mr. Turton: What I said was that in a court of summary jurisdiction it is not possible to get a separation on the ground of one act.

Viscount Wolmer: I am much obliged to my hon. Friend for his correction. This definition would not be sufficient for

a separation under the Summary Jurisdiction Act, but it is going to be made sufficient for a divorce. Let us consider the situation in which we are. You may have a comparatively short period of violent disagreement between husband and wife. Threats may be used, blows may be exchanged. Every one of those acts would come under the definition which the Solicitor-General has just read out. My hon. Friend says that it depends on the blow, but consider the levity with which he treats this subject.

Mr. Herbert: Surely it is evident and reasonable that it may depend upon the blow. A single blow with the fist, for example, in a slum area, might not be a ground for divorce. But a single savage attack with a knife would be a very different matter.

Viscount Wolmer: It is perfectly possible for a blow with the fist to endanger life, and it has frequently happened. Is it suggested that, if a man gives his wife a black eye, it should be a ground for divorce? The actual extent of the injury has never been defined. I ask the House to realise the chaos into which the marriage law of this country will be thrown. It all depends, according to my hon. Friend, where the blow lands on the body; it depends within an inch or two how far life or health is endangered. To continue the illustration, the wife, or it may be the husband, bitterly resents this treatment, and, in a fit of revenge, institutes proceedings for divorce. My hon. Friend says that that is not going to happen, but he wants it to happen; the object of the Bill is to enable that sort of thing to happen. That, I say, is doing something very definite to reduce the whole standard of marriage to a day-to-day contract.
Are we not striking at the whole roots of the idea of monogamy in this country? The whole idea of monogamy—I am not talking about Christian marriage at all at the moment—is that these troubles should not break the bond, that it is a lifelong union, that the very merit of the union, the very importance of the whole relationship to national character and national fibre, depends on forgiving and forgetting a multitude of mistakes and errors, outbursts of temper, acts of violence, and the like. It is going to be said that these things in future shall destroy,


or be made capable of destroying, the bond of marriage. I say that that is certainly doing something to lower very definitely the whole public idea of marriage in this country. The promoters of the Bill could meet us at any moment by accepting this Amendment. I cannot conceive why they are not content with persistent cruelty. Persistent cruelty would be a very grave departure from the present law. Surely the Solicitor-General does not intend that a single act, however grave—

The Solicitor-General: I am sure my Noble Friend must have misunderstood something that I said. I do not say that every single act is sufficient to create a ground for divorce. What I say is that there may be single acts which are sufficient. An instance of that would be the communication of venereal disease. Would my Noble Friend say that that should be allowed to go on persistently?

Viscount Wolmer: If my hon. and learned friend thinks that that is a subject which should be treated separately, it ought to be treated separately in the Bill. I am not sure that I should be in order in arguing that particular point, because I think it is dealt with in a later Clause. That particular act, of course, involves an act of adultery—[HON. MEMBERS: "No!"]—not necessarily, but in most cases it would, and, therefore, it would come within the present law. But if the Solicitor-General thinks that it ought to be a ground for divorce, I suggest that it ought to be dealt with in the Bill. I am dealing with the Bill as it stands, and the Solicitor-General has said in our hearing that a single act of cruelty would under this Bill—[HON. MEMBERS: "Might!"]—might form a ground for divorce. I am much astonished that the promoters of the Bill should wish that to be so. The whole case for the point that we were discussing on the last Amendment rested on the argument that the marital bond has irrevocably broken down. The promoters of the Bill think that a period of three years desertion is necessary to prove that. I could understand them arguing—though I should not agree with them—that persistent cruelty had broken the marital bond, but to argue that a single act of cruelty endangering life or limb, or giving the impression that it was going to endanger life or limb, can ever be

held to be sufficient to show that the marital bond has irrevocably broken down, astonishes me. Is there to be no forgiveness and forgetting in the philosophy of those who are trying to reform our marriage laws? Though I am sure hon. Members do not realise it, it is undermining the whole conception of monogamous marriage to say that a single act of this sort, which may be committed in a moment of passion and may be bitterly regretted afterwards, is going to enable what has hitherto been regarded as a life-long union to be broken by the courts of law.

1.16 p.m.

Mr. Crossley: I understand that mental cruelty may be included under the general definition of cruelty. I think that is a most dangerous innovation in our law. Some distinction should have been made between mental and physical cruelty. Another point—here I am in a difficulty because I cannot entirely agree with some of the argument of my noble Friend—is that a man who has been found guilty of persistent cruelty, and whose wife has obtained a divorce for it, is free to marry again, and in many cases he will leave the district where he is known, and his reputation is known, and will marry again and, as cruelty is so often a form of vice, he will in fact repeat his offence. I cannot help feeling that, if the House is going to put in this provision, it should be made the law that a man divorced for persistent cruelty ought not to be allowed to marry again.

1.20 p.m.

Mr. Grant-Ferris: I sincerely hope that the Amendment will be passed. I have during the last few days taken the opportunity of looking up the leading cases on this point. I will spare the House the reading of them at present. I have read the case of Russell and Russell in 1897. There you find much food for thought, and that many learned Law Lords disagreed about what was cruelty and what was not. Therefore, it is our duty as a Legislature to give those learned Law Lords every help that we possibly can. I think that by adding the word "persistent" we shall go some way towards achieving that end. The word was used in the Married Women's Jurisdiction Act, 1895, and I hope it will be used again so that there may be some uniformity in the matter. There is also the case of Kerry and Kerry and Grossi and Grossi. These


cases have shown that there has been a great divergence of opinion in the past upon this matter of cruelty, and I hope that the House will do its best to prevent is from ever happening again.

Colonel Gretton: Unless this word is inserted it will be taken in the Courts that Parliament intended something less than "persistent." The Solicitor-General read out a long definition of what is legal cruelty. That definition, I gather, is not contained in any Statute, but is a legal definition given in the course of judgments in the Courts. That is not a satisfactory position. The definition might be altered at any time. I am not finding fault with judge-made law, but in a matter of this kind we must be very careful in relying on judge-made law as a guide to the principles of cruelty in the Courts. As the matter stands, I am not convinced by my hon. and learned Friend's arguments, and I shall be compelled to support the Amendment.

1.24 p.m.

Lieut-Commander Agnew: My noble Friend the Member for Aldershot (Viscount Wolmer) said that cases of cruelty where venereal disease was involved would also be accompanied by adultery, and the case would be more appropriately dealt with under adultery. I notice that he was contradicted in several quarters of the House. I take it, therefore, that this sub-section also would seek to cover those cases where a terrible disease of this kind was either inherited or acquired accidentally by hazard, as medical opinion states it may well be. In a later Clause of the Bill the question of a respondent suffering from venereal disease at the time of the marriage is dealt with as a ground of nullity. That is a Clause which I certainly support. But it seems to me that it is going to be difficult to ascertain whether a respondent was or was not suffering from the disease at the time of the marriage, and, as it is going to be difficult, there may be cases arising of confusion, and indeed, victimisation. A man might acquire one of these diseases accidentally, and I cannot believe that that should be a proper cause for a divorce, even under this paragraph, to submit to the Courts. I cannot believe that it is the intention of the promoters of the Bill that, because of an accident of this terrible kind, a man should have

a decree of divorce granted against him. If, on the other hand, the word "persistent" were inserted in the Clause, then you would entirely minimise the chance of victimisation taking place, because it is extremely unlikely that an accident of the kind that I have mentioned would be likely to occur more than once.

Mr. McGhee: Does the hon. and gallant Member suggest that passing on the disease would be cruelty?

Lieut.-Commander Agnew: I have not gone into the question of passing on the disease. But obviously it might be knowingly passed on, or it might be unknowingly passed on. Both cases, I think, are equally possible. I was saying that I think it wrong that a man who acquires a disease as a result of an accident should be made the guilty party in a divorce suit under the provision of cruelty, and, therefore, if we insert the word "persistent" we shall provide a very powerful safeguard against what would otherwise be a gross abuse of the elementary rules of justice.

1.27 p.m.

Sir Edward Campbell: It strikes me that there is a great deal in this Amendment. On the other hand, the learned Solicitor-General has told us what the law is and that it has been satisfactory for a great number of years. One cannot help thinking, therefore, that it is a pity to alter it. When I was the chairman of a hospital many people brought their relations there very ill, and they would go to the complaint book and write a long complaint in a fit of temper. I arranged that no complaints should be allowed to be put into the book until 24 hours afterwards. The noble Lord the Member for Aldershot (Viscount Wolmer) has said that these cases of cruelty are often cases of assault committed in a fit of passion, and that immediately after such an assault the person concerned starts legal proceedings. If these legal proceedings could not be taken for a certain time, say for six months, there would then at least he an interval, and people who had had a terrific row about something very important at the moment might then, in calmer times, come to see that it was less important.

Mr. Deputy-Speaker (Captain Bourne): The hon. Member seems to be very far from the Amendment.

Sir E. Campbell: I am just trying to justify the word "persistent". If an interval were allowed in the way that I have suggested it would amount to much the same thing as would be secured by this proposed provision of persistent cruelty.

1.29 p.m.

Sir William Wayland: Surely this is a matter for the Judges. Anybody who has been on the Bench and had cases before him of a demand for a separation order will know that the order is not given if

the woman can only state that cruelty was committed in one instance. And what is the meaning of "persistent"? You might have persistence for years; you have to leave it to the Judges to decide. Surely we have sufficient confidence in our Judges to leave the general word "cruelty" with them for their interpretation.

Question put, "That the word 'persistent' be there inserted in the Bill".

The House divided: Ayes, 48; Noes, 130.

Division No. 142.]
AYES.
[1.31 p.m.


Agnew, Lieut.-Comdr. P. G.
Groves, T. E.
O'Neill, Major Rt. Hon. Sir Hugh


Beaumont, M. W. (Aylesbury)
Gunston, Capt. D. W.
Orr-Ewing, I. L.


Beaumont, Hon. R. E. B. (Portsm'h)
Haslam, H. C. (Horncastle)
Ross Taylor, W. (Woodbridge)


Bower, Comdr. R. T.
Heilgers, Captain F. F. A.
Smith, E. (Stoke)


Burton, Col. H. W.
Holmes, J. S.
Stuart, Lord C. Crichton- (N'thw'h)


Channon, H.
Hume, Sir G. H.
Sueter, Rear-Admiral Sir M. F.


Clarke, Lt.-Col. R. S. (E. Grinstead)
Hurd, Sir P. A.
Tinker, J. J.


Clarry, Sir Reginald
Kelly, W. T.
Tufnell, Lieut.-Commander R. L.


Crooke, J. S.
Leckie, J. A.
Turton, R. H.


Crossley, A. C.
Lennox-Boyd, A. T. L.
Ward, Lieut.-Col. Sir A. L. (Hull)


Crowder, J. F. E.
Llewellin, Lieut.-Col. J. J.
Ward, Irene M. B. (Wallsend)


Denville, Alfred
Loftus, P. C.
Waterhouse, Captain C.


Evans, Capt. A. (Cardiff, S.)
Mabane, W. (Huddersfield)
Wells, S. R.


Grant-Ferris, R.
McKie, J. H.



Grattan-Doyle, Sir N.
Manningham-Buller, Sir M.
TELLERS FOR THE AYES.—


Greene, W. P. C. (Worcester)
Maxwell, Hon. S. A.
Mr. Oswald Lewis and Visco un


Gretton, Col. Rt. Hon. J.
Mayhew, Lt.-Col. J.
Wolmer.


Griffith, F. Kingsley (M'ddl'sbro, W.)
Neven-Spence, Major B. H. H.





NOES.


Acland, Rt. Hon. Sir F. Dyke
George, Major G. Lloyd (Pembroke)
Nicholson, G. (Farnham)


Acland, R. T. D. (Barnstaple)
Gibson, R. (Greenock)
O'Connor, Sir Terence J.


Adamson, W. M.
Gluckstein, L. H.
Oliver, G. H.


Allen, Lt.-Col. J. Sandeman (B'kn'hd)
Green, W. H. (Deptford)
Paling, W.


Ammon, C. G.
Gridley, Sir A. B.
Parker, J.


Attlee, Rt. Hon. C. R.
Hall, J. H. (Whitechapel)
Penny, Sir G.


Balfour, Capt. H. H. (Isle of Thanet)
Henderson, T. (Tradeston)
Perkins, W. R. D.


Barr, J.
Hills, Major Rt. Hon. J. W. (Ripon)
Petherick, M.


Batey, J.
Hopkin, D.
Pethick-Lawrence, F. W.


Beaumont, Hon. R. E. B. (Portsm'h)
Hudson, Capt. A. U. M. (Hack., N.)
Ponsonby, Col. C. E.


Beit, Sir A. L.
Harvey, T. E. (Eng. Univ's.)
Potts, J.


Bevan, A.
James, Wing-Commander A. W. H.
Pritt, D. N.


Blair, Sir R.
Jenkins, Sir W. (Neath)
Quibell, D. J. K.


Blaker, Sir R.
Jones, A. C. (Shipley)
Rickards, G. W. (Skipton)


Bowyer, Capt. Sir G. E. W.
Jones, Morgan (Caerphilly)
Ridley, G.


Braithwaite, Major A. N.
Kennedy, Rt. Hon. T.
Ritson, J.


Briscoe, Capt. R. G.
Kerr, J. Graham (Scottish Univs.)
Ropner, Colonel L.


Broad, F. A.
Knox, Major-General Sir A. W. F.
Rowson, G.


Brocklebank, C. E. R.
Lathan, G.
Russell, A. West (Tynemouth)


Brown, C. (Mansfield)
Law, R. K. (Hull, S.W.)
Sanderson, Sir F. B.


Brown, Rt. Hon. E. (Leith)
Leach, W.
Seely, Sir H. M.


Campbell, Sir E. T.
Lee, F.
Selley, H. R.


Cassells, T.
Macdonald, G. (Ince)
Simon, Rt. Hon. Sir J. A.


Cazalet, Thelma (Islington, E.)
McEntee, V. La T.
Simpson, F. B.


Charleton, H. C.
McGhee, H. G.
Smith, Ben (Rotherhithe)


Chater, D.
Macquisten, F. A.
Sorensen, R. W.


Cooke, J. D. (Hammersmith, S.)
Makins, Brig.-Gen. E.
Southby, Commander A. R. J.


Daggar, G.
Margesson, Capt. Rt. Hon. H. D. R.
Spens, W. P.


Dalton, H.
Markham, S. F.
Strauss, G. R. (Lambeth, N.)


Denman, Hon. R. D.
Mathers, G.
Strauss, H. G. (Norwich)


Dobbie, W.
Maller, Sir R. J. (Mitcham)
Sutcliffe, H.


Dower, Capt. A. V. G.
Mellor, Sir J. S. P. (Tamworth)
Tasker, Sir R. I.


Duckworth, Arthur (Shrewsbury)
Messer, F.
Tate, Mavis C.


Duggan, H. J.
Mills, Major J. D. (New Forest)
Taylor, Vice-Adm. E. A. (Padd., S.)


Ede, J. C.
Montague, F.
Taylor, R. J. (Morpeth)


Edwards, Sir C. (Bedwellty)
Moore, Lieut.-Col. T. C. R.
Thorne, W.


Findlay, Sir E.
Morrison, G. A. (Scottish Univ's.)
Thurtle, E.


Fletcher, Lt.-Comdr. R. T. H.
Morrison, R. C. (Tottenham, N.)
Touche, G. C.


Foot, D. M.
Muff, G.
Viant, S. P.


Ganzoni, Sir J.
Naylor, T. E.
Watkins, F. C.




Wayland, Sir W. A
Windsor, W. (Hull, C.)
Young, Sir R. (Newton)


Whiteley, W.
Wise, A. R.



Williams, C. (Torquay)
Withers, Sir J. J.
TELLERS FOR THE NOES.—


Wilton, Lt.-Col. Sir A. T. (Hitchin)
Walt, G. S. H.
Mr. A. P. Herbert and Mr. De la




Bère.

1.38 p.m.

Mr. Turton: I beg to move, in page 2, line 12, to leave out "five" and to insert "seven."
I hope that the hon. Members in charge of the Bill will accept this Amendment. If they are going to accept it, I shall treat it as a formal Amendment and that will save a good deal of time, but if they are going to oppose it, I shall have to talk longer. The object of the Amendment is to make the grant of divorce on the grounds of incurable insanity a period of seven years instead of five years. This is a ground of divorce which arises through no conscious act of the respondent—no wrong act. It is his misfortune that he has become insane, and for that reason one wants to be very careful that no injustice is done. I put forward the period of seven years as being better than five years, because seven years is the period adopted in our marriage laws for other purposes. I refer particularly to the Bigamy Act. Under the law of bigamy if one party has not seen the other, or has heard nothing of the other party for seven years and then marries somebody else, it is for the prosecution to prove that one party knew the other party was alive. The period of seven years has been co-opted into this Bill in Clause 7, where the period for the grant of divorce on presumption of death is seven years, and not five. I, therefore, submit that the period of seven years would be more consistent with the present law, and would also give better safeguard to those who dislike giving divorce on the ground of incurable insanity. It is right to be able to get a divorce on the ground of incurable insanity of one party, but we should be very careful how we give that right. I would ask the promoters of the Bill to consider this Amendment with sympathy, inasmuch as it is not moved in any hostile spirit.

1.41 p.m.

Commander Bower: I beg to second the Amendment, and I want to make it clear that I do so, not because I am particularly attached to the period of seven years, but because I think that seven years would give a little longer time, and is, therefore, more desirable.

It is one of the most difficult questions to deal with. It is difficult to find any medical men who will give a definition of incurable insanity, or will definitely say that the condition of any particular patient is incurable. This allowing of divorce for insanity, whether it be considered incurable or not, may in a great many cases have a most unfortunate effect upon a patient whose mind is in an unstable condition. Imagine the case of an individual who is committed to a home suffering from mental or nervous breakdown and feeling that his wife or her husband possibly desires to get rid of him or her and is waiting for the opportunity of getting the marriage dissolved. That is a very important consideration, and we have to consider whether that kind of thing is likely to lead towards the curing of that mental state. Generally speaking, I think that anybody affected with nervous worry or insanity could never count on their recovery if they could not count on finding the wife, the husband or the children waiting for them to give them that support and help which under the marriage contract is their due. Lord Merrivale, writing in the "Times" on 6th December, 1933, used some words which bear directly on this matter. He said:
It is doubtful whether in these modern times you could frequently say that an insane person is beyond recovery, and in ordinary contracts, to which marriage in other respects cannot be compared, there would be great difficulty in arranging the condition that it should be broken by one of the signatories.
Most important of all, there is the question of those who have voluntarily entered a mental institution. In Committee the hon. and learned Member for Leicester East (Mr. Lyons) pointed out that any person received as a voluntary patient under Section 1 (5) of the Act of 1930 may leave the institution, hospital or home on giving to the person in charge 72 hours' notice in writing of his intention to do so, or, if he is a person under the age of 16, such notice is given by his parent or guardian. We have the astonishing state of affairs, this legal anomaly, that a person who is well enough to go out of an institution at short notice under the Act is considered


by the promoters of the Bill to be so insane that he can be divorced behind his back.

Sir J. Withers: He cannot be divorced behind his back. There is a period of five years, and also there must be medical evidence.

Commander Bower: Let me say that such a person is considered to be so insane that he can be divorced, yet under the 1930 Act he can walk out when he likes. The Clause merely serves to show once more the difficulties into which the promoters have got themselves by a well-intentioned attempt to improve the law. For every case they are going to cure they will create a dozen more anomalies and difficulties. The sooner we drop these attempts, especially by private Members' legislation, to deal with a matter which goes to the roots of Christian civilisation, the better.

Mr. Deputy-Speaker: I cannot see how that has anything to do with the question in the Amendment.

Commander Bower: I will conclude by saying that insanity, if it is introduced as a ground for divorce, can only lead to further difficulties which will entail further legislation, which I firmly hope His Majesty's Government themselves will have the courage and decency to introduce instead of allowing it to be done in this hotch-potch manner by a private Member.

1.48 p.m.

Lieut.-Commander Agnew: It would not be in order to go into the question of whether insanity is a suitable ground for divorce, and whether it should be retained in the Bill or not. The Amendment seeks to extend the period before any prospective petitioner can get a divorce, and I have heard no reasons either upstairs in Committee or in the House why the period of five years is selected. There would be very few medical men who would be prepared to say after five years that a person was incurably insane. There have been cases of people who were apparently incurably blind as a result of the War but some sudden shock, of a kind which cannot be produced by any of the known forms of medical treatment, has enabled them to recover their sight. It may be that in a case of insanity a similar dispensation of Providence might

operate between the fifth and the seventh year. I have not attempted to conceal my antagonism to insanity as a ground for divorce, but I feel that five years is far too short a period. In regard to the medical evidence, it was found by the Commission which reported before the War, that while medical opinion was fairly well divided as to whether insanity was incurable or not, that portion of medical opinion which specialised on cases of insanity were of the opinion that it was quite impossible to lay down a general rule and say whether insanity was incurable or otherwise. A great element of doubt therefore exists, and while the Committee decided that incurable insanity should be in the Bill as a matrimonial cause there was always an element of doubt as to whether you really could say that insanity was or was not incurable. We are, in fact, assuming a somewhat arbitrary position in saying that if insanity has been present for five years it is incurable.

Mr. Cassells: On a point of Order. Is it not the case that a petitioner requires to prove two facts: first, that the respondent is incurably of unsound mind and, secondly, has been continuously under care and treatment for at least five years?

Mr. Deputy-Speaker: That is not a point of Order.

Lieut.-Commander Agnew: I can understand the hon. Member being deeply concerned and not at all clear in his mind about the grave issues which are involved in the Amendment and in the question of insanity. But not only is medical opinion confused, but public opinion generally is in grave doubts on this question. When these doubts exist, I think that the case for granting relief in what is virtually mental death, should not be of a shorter limit than in the case for granting relief for overseas desertion, which provides for the presumption of death after seven years. If a person has been dead in his mind for five years, you make it a ground for divorce, but when the body is far removed, the presumption of death is only to be granted after seven years. There is no argument for making the one period shorter than the other.
I do not think we need pay too much attention to what goes on in foreign countries, although I could quote a great many examples based on the laws in the


various States of the United States of America, but they are young and without the traditions of this country and the sister nations of the British Empire, and therefore have not worked out fully their social habits and customs in the same way as have the older nations of the British Empire. I would like to examine the practices in some countries of the British Empire. According to the Report of the Royal Commission, in Western Australia the period is five years, and the wording of the provision is that relief will be granted if the person has been confined in an asylum or other institution, according to the provisions of the Lunacy Act, 1903, for a period or periods of not less, in the aggregate, than five years within the six years immediately preceding the suit and is unlikely to recover.
There is thus a very important additional safeguard. I could well understand a medical man signing a certificate saying that a person was incurably insane, but a good many of them would not commit themselves to saying that certain processes might not take place inside that person's brain which would prevent them from being free to prophesy in a certificate that he was not likely to recover. Therefore, there is in Western Australia a safeguard which, on the face of it, this Bill does not contain. The promoters of the Bill have been very courteous to me this morning, and I have reinforced my earlier decision not to delay the House, but I would like briefly to refer to the law in the Dominion of New Zealand. There relief for insanity is granted only after a period or periods of not less in aggregate than ten years, which is double the period proposed in this Bill. That is the law in a young and enlightened Dominion, where the ancient traditions, although rooted, are not as completely rooted as in this country. It is, moreover, a Dominion which probably has never known the restrictions and inhibitions which existed in this country until more recent years under the old ecclesiastical laws.

Sir J. Withers: What is the wording of the provision?

Lieut.-Commander Agnew: According to the Report of the Royal Commission, it is:
On the grounds that the respondent is a lunatic or a person of unsound mind and has been confined in an asylum or other institution

or house, in accordance with the provisions of the Lunatics Act, 1908, for a period or periods not less, in the aggregate, than 10 years within the 12 years immediately preceding the suit and is unlikely to recover.
When we see what is the practice in two of our Dominions—in the one case a period not less than that proposed in the Bill and in the other case in excess of it we have an argument which I think the House cannot resist for adopting the period of seven years, which stands midway between the two and which, moreover, corresponds to the period after which physical death is presumed by the court.

2.0 p.m.

Sir Arnold Wilson: On behalf of the promoters of the Bill, I oppose this Amendment, and I very much hope that after the hon. Member who moved it has heard my remarks, he will see fit to withdraw it. The recommendation of the Royal Commission of 1912 on this subject was that five years should be the period during which continuous care and treatment should be applied before there could be any judgment on the matter of incurability. Moreover, the important words in the Clause are:
is incurably of unsound mind.
All that my hon. Friends have said as to the difficulty of proving insanity is entirely in favour of our point of view.

Mr. Crossley: Does that mean that no decision could be taken by any medical authorities about the incurability of a patient until he had been in an institution for five years?

Sir A. Wilson: Yes. The conditions are that not only must the patient be continuously under treatment for five years, but he must also after that be subjected to a medical examination which, in the opinion of the court, is sufficient to prove that he is in fact incurably insane. Everything that has been said by my hon. Friends who have supported the Amendment justifies the conclusion that doctors will in future be increasingly reluctant to declare that a person is incurably of unsound mind, and that the question of five years will be of less importance now than it was in 1912. The Seconder of the Amendment pointed out that persons who, under the following Clause, were voluntary patients, might come under this provision, and he said that those people were free to leave at any moment. I


would point out that under Clause 3 (b) they must have been continuously under treatment without any interval.
After a very careful survey of the reports of the Board of Control of the last few years, of the figures as to incurability and of the very great efforts which are being made with the aid of funs provided by the Medical Research Council, the Rockefeller Trust and others to extend the possible relief of insanity, I am confident that the Clause is as safe as anybody can make it, and that we should be ill-advised to increase to seven years the period during which a patient must be under continuous treatment. Even in 1912 a period of five years was regarded as adequate and the Report of the Royal Commission stated that only 2 per cent. showed any apparent recovery after five years, whereas there was an apparent recovery of more than 10 per cent. during the five years. Consequently, there are strong grounds for maintaining the period of five years, but there are much less strong grounds for extending it beyond five years, since out of 100 possible recoveries only two take place after the period of five years.

Lieut.-Commander Agnew: Would it not be right, if we could, to give relief to that 2 per cent. in the Statute?

Sir A. Wilson: I think we can safely say that they would not be certified as incurable. There are not sudden, unexpected changes; it is a question of slow recovery. I am certain that no person who would recover within seven years could be certified by a doctor as incurably insane in the fifth year. The important words are,
is incurably of unsound mind.
The period of treatment is a subsidiary matter. Whether it be five years or seven years immediately preceding the presentation of the petition, I am convinced that the doctors will pay more attention to the question of incurability.
I should not be in order at this point in discussing Clause 3 which has also some bearing upon this question, but I hope, in view of what I have said, that my hon. Friends will not consider it necessary to press their Amendment.

2.6 p.m.

Mr. Barr: It was properly said by the hon. Member for Thirsk and Malton (Mr. Turton) that we were entering upon a new

realm in the discussion of this Amendment as compared with the other Amendments which we have been considering. We are dealing now, not with any fault on the part of one of the partners but with a calamity which come upon one of them. The hon. and gallant Member who seconded the Amendment said, equally properly, that this is one of the most difficult subjects which we have to consider. If I may make one further reference to my own country I would point out that in the Bill introduced in another place in regard to Scotland the period is three years. I think that is a conclusive answer to the argument used earlier today that the change to three years had been made in that case to bring the Scottish Measure into line with the English Measure. I cannot conceive a noble judge, like Lord Alness, saying in another place that he was proposing a provision merely to bring Scottish law into line with English law. For myself, I have many regrets, and I have made many mistakes during the years I have been in this House, but I cannot charge my conscience with having, on any occasion, brought in or supported a proposal solely on the ground of bringing Scottish law into line with English law.
This is a difficult and delicate question, and we must use the greatest care in regard to it. It is true that the Bill says that the insanity must be incurable and yet we know that the doctor who certified a case as incurable at one time, might find himself forced to alter his opinion on another occasion. A fortnight ago I visited an asylum and the governor told me of a case which had been there for 25 years. At the end of that time the patient was found to be sufficiently well to be allowed to go home, and she had never returned. That, however, is an exceptional case, and I think the figures given to the Committee showed that those who were cured after five years were not more than 1·6 per cent. of all the recoveries. There are, of course, cases of hardship but I think five years is not too short a period. The governor of that asylum also told me that there was nothing more touching than the affection exhibited between couples, one of whom had been in the asylum perhaps for many years.
I would also point out that this provision is only permissive and is in order


to meet cases of hardship. A great deal has been said about the Church and the solemnity of marriage. It is for the Church within its own sphere to engender such feelings as will make the solemnity of marriage a reality, and will prevent any ill-advised taking advantage of the provision which we are making here. Recognising that this is a difficult and delicate question, but having regard to the recommendations of the Royal Commission and to the safeguards provided by the word "incurable" and by the period of time which has been fixed, I am prepared to accept the proposal in the Bill.

2.10 p.m.

Major Neven-Spence: No doubt hon. Members have been greatly influenced in support of the Bill by the findings of the Royal Commission, and particularly those which deal with insanity as a ground of divorce. The findings of the Royal Commission, even those in the Majority Report, are not necessarily to be taken as gospel, and that applies particularly on this point. I am sorry that I cannot speak against the inclusion of the whole of paragraph (d) but as it is, I must confine my remarks to the desirability of extending the period from five years to seven years. I think hon. Members who support the Bill are too ready to brush aside the rights and interests of the mentally afflicted. They are too ready, in the words of an eminent limb of the law, to regard those so afflicted as a negligible proportion of persons or mere handful and to treat them accordingly in what I consider to be a merciless manner. The mentally afflicted have as much right to the divine quality of mercy as anybody else.
The quality of mercy is not strained;
It droppeth, as the gentle rain from Heaven.
I think paragraph (d), in this case, poisons that quality at the source, and I support this extension in the hope that it will at least dilute the poison. The effect of paragraph (d) would be that those who recovered their sanity after five years would have no right to resume cohabitation with their spouses.

Mrs. Tate: It may help the hon. and gallant Gentleman in his difficulty if he realises that this only makes provision for cases of incurable insanity, and the proportion of recoveries from sanity after five years is extremely small. The very

wording of the paragraph safeguards the position for which the hon. and gallant Member is arguing.

Sir J. Withers: What ground has the hon. and gallant Gentleman for saying that under this provision those who recover their sanity after five years would have lost their rights?

Major Neven-Spence: If the person who recovers has been divorced by the other party, then that person has obviously lost his or her rights. I am much obliged to the hon. Lady the Member for Frome (Mrs. Tate) for her intervention, and I propose to deal with that point in due course. To my mind this proposal is unacceptable to civilised opinion for the most part, and I am not sure that those who have proposed this paragraph are not themselves to some extent candidates for an institution, or, at any rate, for examination by an expert because they seem to be suffering from certain delusions. I had not the benefit of being present at the Committee upstairs but I read a great deal of what transpired, and it seems that one delusion from which they suffer is that all the immorality and all the rest of it, of which we have heard in these cases, can be put down to the fact that one of the partners to a marriage has been confined to an asylum. Of course that is not the case.

Mr. Deputy-Speaker: What has that to do with the question of five years or seven years?

Major Neven-Spence: I am trying to make out a case for the widest possible extension of this period, but perhaps I had better pass away from the question of delusions if it is out of order. I would point out that mental illness itself is due to a whole concatenation of circumstances and variety of causes, some of which are inborn and others acquired, but all of which are closely related to emotional and instinctive forces, entirely without the control of the individual.
I must come back to my delusions again. One argument that is used is that the mentally afflicted, by reason of their illness, lose all their regard for family ties and affections, and become dull and apathetic and are indifferent to what becomes of them. That is not the opinion of those who are best qualified to judge.


Many patients retain all their kindest feelings and are acutely conscious of changes affecting their well-being and their rights and liberties. How can anyone suppose that in those circumstances the prospect of being divorced after a period of five years is not going to affect a patient? Divorce in such circumstances, I maintain, would be to inflict a cruel blow on the patient. It is hitting him beneath the belt; it is hitting a man when he is down; and in such circumstances it is absolutely bound—I speak as one who has had some experience—to retard recovery.
Let the House consider for one moment the lot of a very important category of insane persons, those who break down at times of extra stress—during childbirth, after a long period of infectious disease or at the change of life. These people are very often the people who have led most exemplary lives. The very excellence of their lives may in itself have been a contributory cause. Good living, conscientious people, sensitive people who have worked hard all their lives and who, through the best period of their lives, have given their best to their families, to the community and to the State, through no fault of their own suffer a mental breakdown. Those are the very cases in which a long period of treatment is almost inevitable before they are restored to mental health and they are the cases which are capable of being restored. No man can say that one of these patients having been confined to an asylum for five years, is not going to recover. The period may be five, seven or 10 years, but such recoveries do take place, and we ought not to do anything to deprive of their rights people who are afflicted in that way and who do not make a recovery in five years.
If, in such cases, to the worry of illness is added the worry of the thought that if the illness continues for more than five years, they may find themselves divorced, then not only is recovery likely to be retarded, but there is every prospect that it will be prevented altogether. Divorce on the ground of illness is contrary to civilised opinion. It is contrary to medical opinion; it is contrary to clerical opinion and contrary to public opinion. I cannot speak for legal opinion, but there are plenty of lawyers here to do that. In any case, lawyers perhaps are not altogether human in their legal capacity.

Mental illness is just as much illness as physical illness, and we have no moral right to pick out one form of illness and make that a ground for divorce in five years.

Mr. Deputy-Speaker: The hon. and gallant Member is now discussing an Amendment which has not been selected.

Major Neven-Spence: If divorce, after a period of five years, is to be allowed for mental illness, why should it not be allowed for a number of other kinds of illness?

Mr. Deputy-Speaker: That is not the point now before the House, and I must ask the hon. Member to confine himself to the question of the five or seven years.

Major Neven-Spence: Persons on the verge of mental breakdown are very keenly alive to future possibilities. Their minds are in the balance and any little thing may serve to turn the scales. I submit that the mere thought that mental illness for five years may result in the loss of family and home would be bound to have a most serious effect on them and may make insane those who might otherwise not become insane at all. I am sorry that through ignorance I have transgressed the rule of Debate so often, but I feel very strongly on this matter, and I would gladly have seen the whole Clause deleted; but as that cannot be I hope the promoters of the Bill will give regard to the points I have raised and at least extend this period from five years to seven, and mitigate what is in any case a blot on an otherwise excellent Bill.

2.22 p.m.

Mr. Crossley: I shall vote the same way as my hon and gallant Friend who has just spoken, though not for the same reason, because I cannot help feeling that in a large part of his speech he was suffering under a delusion—a delusion that because a person is in an institution for five years, he is, therefore, liable to divorce under the Bill. That, of course, is not so, and so much ought to be said. A patient has to be incurably insane. Most of the cases to which my hon. and gallant Friend has referred would never be so certified. Seven years is a safer period than five years, and as it is desirable to have a longer period than five years, I shall vote for the


longer period. Like my hon. and gallant Friend I detest the idea of divorce for insanity, although I frankly recognise that most of the hardest cases that there are in our divorce courts are cases which involve insanity. There is not the slightest doubt that there are in the asylums of the country to-day many

people who are living in dread of the provisions of this Bill. May be they are suffering under the same delusion as my hon. and gallant Friend.

Question put, "That the word 'five' stand part of the Bill."

The House divided: Ayes, 141; Noes, 48.

Division No. 143.
AYES.
[2.24 p.m.


Acland, Rt. Hon. Sir F. Dyke
Hollins, A.
Potts, J.


Acland, R. T. D. (Barnstaple)
Hopkin, D.
Pritt, D. N.


Adamson, W. M.
Hudson, Capt. A. U. M. (Hack., N.)
Quibell, D. J. K.


Ammon, C. G.
Harvey, T. E. (Eng. Univ's.)
Reed, A. C. (Exeter)


Attlee, Rt. Hon. C. R.
James, Wing-Commander A. W. H.
Rickards, G. W. (Skipton)


Balfour, Capt. H. H. (Isle of Thanet)
Jenkins, Sir W. (Neath)
Ridley, G.


Barr, J.
Jones, A. C. (Shipley)
Ropner, Colonel L.


Beaumont, Hon. R. E. B. (Portsm h)
Jones, Morgan (Caerphilly)
Rowson, G.


Beit, Sir A. L.
Kennedy, Rt. Hon. T.
Russell, A. West (Tynemouth)


Bellenger, F. J.
Knox, Major-General Sir A. W. F.
Salter, Sir J. Arthur (Oxford U.)


Blair, Sir R.
Law, R. K. (Hull, S.W.)
Sanders, W. S.


Blaker, Sir R.
Leach, W.
Sanderson, Sir F. B.


Bowyer, Capt. Sir G. E. W.
Leckie, J. A.
Scott, Lord William


Bracken, B.
Lee, F.
Selley, H. R.


Braithwaite, Major A. N.
Lewis, O.
Shakespeare, G. H.


Broad, F. A.
Llewellin, Lieut.-Col. J. J.
Simon, Rt. Hon. Sir J. A.


Brown, C. (Mansfield)
Mabane, W. (Huddersfield)
Simpson, F. B.


Brown, Rt. Hon. E. (Leith)
Macdonald, G. (Ince)
Smith, Ben (Rotherhithe)


Campbell, Sir E. T.
Macdonald, Capt. P. (Isle of Wight)
Smith, E. (Stoke)


Cassells, T.
McEntee, V. La T.
Sorensen, R. W.


Cazalet, Thelma (Islington, E.)
McGhee, H. G.
Southby, Commander A. R. J.


Charleton, H. C.
Macquisten, F. A.
Spears, Brigadier-General E. L.


Chater, D.
Makins, Brig.-Gen. E.
Spens. W. P.


Clarry, Sir Reginald
Manningham-Buller, Sir M.
Strauss, G. R. (Lambeth, N.)


Cluse, W. S.
Margesson, Capt. Rt. Hon. H. D. R.
Strauss, H. G. (Norwich)


Cooke, J. D. (Hammersmith, S.)
Markham, S. F.
Tasker, Sir R. I.


Cruddas, Col. B.
Maxwell, Hon. S. A.
Tate, Mavis C.


Daggar, G.
Mayhew, Lt.-Col. J.
Taylor, Vice-Adm. E. A. (Padd., S.)


Dalton, H.
Mellor, Sir J. S. P. (Tamworth)
Thorne, W.


Davison, Sir W. H.
Milner, Major J.
Thurtle, E.


Denman, Hon. R. D.
Montague, F.
Touche, G. C.


Dobbie, W.
Moore, Lieut.-Col. T. C. R.
Tufnell, Lieut.-Commander R. L.


Doland, G. F.
Morgan, R. H.
Viant, S. P.


Dower, Capt. A. V. G.
Morrison, G. A. (Scottish Univ's.)
Walkden, A. G.


Duckworth, Arthur (Shrewsbury)
Morrison, R. C. (Tottenham, N.)
Watkins, F. C.


Duggan, H. J.
Muff, G.
Watt, G. S. H.


Ede, J. C.
Naylor, T. E.
Wayland, Sir W. A


Edwards, Sir C. (Bedwellty)
Nicholson, G. (Farnham)
Williams, C. (Torquay)


Findlay, Sir E.
O'Connor, Sir Terence J.
Williams, H. G. (Croydon, S.)


Fletcher, Lt.-Comdr. R. T. H.
Oliver, G. H.
Wilson, Lt.-Col. Sir A. T. (Hitchin)


Gibson, R. (Greenock)
O'Neill, Major Rt. Hon. Sir Hugh
Windsor, W. (Hull, C.)


Gluckstein, L. H.
Paling, W.
Wise, A. R.


Green, W. H. (Deptford)
Parker, J.
Withers, Sir J. J.


Gridley, Sir A. B.
Penny, Sir G.
Young, Sir R. (Newton)


Groves, T. E.
Perkins, W. R. D.



Harris, Sir P. A.
Petherick, M.
TELLERS FOR THE AYES.—


Henderson, T. (Tradeston)
Pethick-Lawrence, F. W.
Mr. A. P. Herbert and Mr. De la Bere.


Hills, Major Rt. Hon. J. W. (Ripon)
Ponsonby, Col. C. E.





NOES.


Agnew, Lieut.-Comdr. P. G.
Greene, W. P. C. (Worcester)
Remer, J. R.


Allen, Lt.-Col. J. Sandeman (B'kn'hd)
Griffith, F. Kingsley (M'ddl'sbro, W.)
Ritson, J.


Batey, J.
Grimston, R. V.
Ross Taylor, W. (Woodbridge)


Briscoe, Capt. R. G.
Gunston, Capt. D. W.
Seely, Sir H. M.


Brocklebank, C. E. R.
Hall, J. H. (Whitechapel)
Strauss, E. A. (Southwark, N.)


Burton, Col. H. W.
Haslam, H. C. (Horncastle)
Stuart, Lord C. Crichton- (N'thw'h)


Channon, H.
Heilgers, Captain F. F. A.
Sueter, Rear-Admiral Sir M F.


Clarke, Lt.-Col. R. S. (E. Grinstead)
Holmes, J. S.
Taylor, R. J. (Morpeth)


Crooke, J. S.
Hurd, Sir P. A.
Tinker, J. J.


Crossley, A. C.
Kelly, W. T.
Ward, Lieut.-Col. Sir A. L. (Hull)


Crowder, J. F. E.
Kerr, J. Graham (Scottish Univs.)
Waterhouse, Captain C.


Denville, Alfred
Loftus, P. C.
Wells, S. R.


Dorman-Smith, Major R. H.
Mathers, G.
Whiteley, W.


Evans, Capt. A. (Cardiff, S.)
Messer, F.
Wolmer, Rt. Hon. Viscount


Ganzoni, Sir J.
Neven-Spence, Major B. H. H.
TELLERS FOR THE NOES.—


Grant-Ferris, R.
Orr-Ewing, I. L.
Mr. Turton and Commander Bower


Grattan-Doyle, Sir N.
Percy, Rt. Hon. Lord E.

CLAUSE 3.—(Insanity definition.)

2.31 p.m.

Commander Bower: I beg to move, in page 2, line 17, to leave out the Clause.
As in dealing with the last Amendment I am afraid I rather overstepped the limits of order and said a great deal which might have been better said on this Amendment, I will cut my remarks as short as possible, with an apology. Sir, to your predecessor in the Chair for having gone out of bounds. We feel that the whole question of including insanity in this Bill is yet again one of those things which can only lead to a very much increased and undesirable extension of divorce, and though I realise that this Clause is nothing but a definition Clause, we put down this Amendment rather as a safeguard so as to have an opportunity of saying something on the matter. That, so far as I am concerned, is all that I wish to say on the subject.

2.33 p.m.

Lieut.-Commander Agnew: I beg to second the Amendment.
The purpose of this Clause is to define what is incurable insanity—

The Solicitor-General: No. This is a definition which, at the instance of the Government, the promoters have put into the Bill, of the care and treatment of persons of unsound mind, and we specify in the first paragraph the different forms of care and treatment that can be given.

Lieut.-Commander Agnew: For the first time in the discussion of this Bill the hand of the Government has been shown, and we have here a definition of what are to be care and treatment for persons of unsound mind. Having accepted the principle, though with reluctance on my part, that insanity is to be a cause of divorce, it is necessary to have some kind of definition so that you can operate it correctly, and I have no doubt that the promoters have derived great benefit from the very helpful advice which has been tendered to them, so that they can have at any rate the legal parts of their Bill in order. I want to address my remarks particularly to paragraph (b) of this Clause, that is to say, to those provisions which relate to persons undergoing treatment as voluntary patients under the Mental Treatment Act, 1930. Section I (5) of that Act reads:

Any person received as a voluntary patient under this Section may leave the institution, hospital, home or place upon giving to the person in charge seventy-two hours' notice in writing of his intention to do so, or if he is a person under the age of sixteen upon such notice being given by his parent or guardian.
While we were in Committee on this Bill it is true that the Solicitor-General gave us information to the effect that very often when persons do leave a home voluntarily under this Act, they are re-certified as of unsound mind, and then, of course, they are classed legally as insane, but there is nothing mandatory about that. It may well be that people give the requisite 72 hours' notice and leave the home, and the proper authorities do not see fit to re-certify them as insane. By the provisions of this Bill as outlined in this Definition Clause, persons may, at the very time when they have taken advantage of their powers to leave a home, be the victims or the subject of an action for divorce brought against them for being incurably insane. If we accept the Clause, we lay ourselves open, therefore, to the grave danger that such people who are considered by the law to be sufficiently fit and able in mind to leave the home after giving 72 hours' notice may be made the victims of a divorce action on the grounds of insanity. It seems to be open to grave abuse if people who are not insane and are allowed to leave the home are insane enough to have divorce actions brought against them.

2.38 p.m.

The Solicitor-General: It is perhaps desirable that I should tell the House exactly what this Clause does. We have already, in Clause 2, made it a ground of divorce that a person is incurably of unsound mind and has been for five years under care and treatment. The court has to find that the person is incurably of unsound mind. This Clause merely goes on to define what care and treatment means. No point arises on paragraph (a), because that is merely a recital of the various measures under which people can be detained, while they are of unsound mind, for care and treatment. So that this paragraph deals only with people who are under detention, and I do not think there can be any dispute that those who are under detention are receiving care and treatment. It does not follow that they are of unsound mind. That is a matter to be decided by the court.
Paragraph (b) deals, as I explained in Committee—and I thought that my hon. Friends were satisfied—with a very small class of people. There are cases in which, for psychological reasons, the actual certification is lifted and a person becomes a voluntary patient. It gives some little peace of mind to such a person's relatives when they are no longer in a position of having to say that the unfortunate subject is certified. The certification is lifted, but on terms. The person must remain in the institution as a voluntary patient, and there are quite a number of people who enjoy that little measure of relief in this terrible affliction in mental homes. They are perfectly safe; they can be allowed on parole to walk about, and are not dangerous to anybody. If they attempted to go out they would be immediately certified again. If their relatives attempted to take them out they would be recertified. It is to cover this limited kind of case which, for this little psychological kindness and courtesy to them and to their relatives, are not technically certified, that we have included them as people who are still really, in the sense of this Bill, under care and treatment. It does not remove the burden on a petitioner or the court of ascertaining whether they are incurably of unsound mind. The whole matter must be read subject to the governing words in the preceding Sub-section.

Mr. Bellenger: Does this paragraph refer only to a class of person who has been certified but whose certificate has been lifted and who becomes a voluntary patient? Is there not another class of persons who can enter an asylum as voluntary patients without previously having been certified?

The Solicitor-General: I think that that class will also be covered, but, again it is subject to the over-riding consideration that the court has to be satisfied that such persons are incurably of unsound mind. Suppose the Bill merely said that, it would probably meet with the promoter's desire, but by Clause 2 there must be two barrels: they must be incurably of an unsound mind and they must have been, for a period of at least five years immediately preceding the petition, under care and treatment. The case put by the hon. Gentleman is safeguarded in the Bill.

2.43 p.m.

Mr. H. Haslam: I hope that, from the point of view of insane persons and the possibility of curative treatment, this Clause will be allowed to stand. I believe it is the general experience of medical men that the 1930 Act has been a most valuable Measure, because it has enabled persons who are not quite sound of mind to enter, of their own accord, into a home and to receive treatment. The Act has proved invaluable to persons who have mental trouble. Many of them have been cured by the voluntary system, whereas people who are forced into an institution often have their curative treatment jeopardised. I think that this Clause, and particularly paragraph (b), should be left for the sake of those who are suffering from mental disability.

2.45 p.m.

Viscount Wolmer: I should like to correct the statement of the Solicitor-General that we have in the two Clauses something in the nature of a double barrel. The main purpose of this Clause is to define what is to constitute care and treatment, but we must not forget that it is possible under the Bill as it stands for a patient to be confined when he is not incurably insane, and at the end of that treatment, and possibly as a result of it, so to have deteriorated in his mental condition that it would be possible to persuade a court that his case had become incurable. Therefore, there is no double barrel, and it seems to me that the Clause gives no sort of added safeguard in regard to the great danger which some of us know from experience must always exist in mental cases.
I am thinking of a case in which I was personally concerned. The wife of one of my servants became violently insane, ran naked down the street, and was shut up in a lunatic asylum and kept there for a long time. I went to see the doctor at the asylum, and he assured me that she was absolutely incurable and would probably die within a short time. On the contrary, after two or three years—I admit that it was not five years—she completely recovered and was released. On the day she came out her husband, who had tuberculosis, fell dead through the bursting of a blood vessel on the chest. Anyone would think that such a shock would have sent her back to the lunatic asylum, but, on the contrary, she buckled


to the task of bringing up her family of four children and has been a splendid mother ever since. I merely give that as an instance of the sort of case, with which many of us may be familiar, in which a person may undergo long periods of care and treatment, with the highest available medical authority saying the case is incurable, and it being found in the end that it was not incurable. Therefore, it seems to me that this definition, which I have no doubt is necessary for legal reasons, does give no added safeguard to those of us who fear the results of this provision in this Clause.

Commander Bower: In view of the debate which has taken place, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

CLAUSE 4.—(Duty of court on presentation of petition for divorce).

2.48 p.m.

Sir Alfred Beit: I beg to move, to leave out the Clause.
In moving the Amendment I find myself in a slight difficulty, because the arguments which I had intended to use have a bearing also upon an earlier Amendment relating to the abolition of the decree nisi which was not selected and therefore I must attempt to address myself to this Amendment without trespassing upon the rules of Order. I have to express my regret, in the first instance, that this Amendment is inaccurately worded, since if it were passed we should be cutting out the defences to a divorce case which are to be found in the second part of the Clause, and I am really addressing myself only to the first part, down to line 22 on page 3. I object to this Clause, which was inserted in Committee, because with the retention of the decree nisi the King's Proctor has transferred to him far greater and more inquisitorial powers than he has at the present time, which I do not think to be really necessary. Under this Clause the burden of proving that there has been no collusion in the case is transferred to the court. The words that were used by the hon. and learned Member for Ashford (Mr. Spens), in introducing the Clause in Committee were as follows:
What this Clause does is to put the onus the other way and to say that the Court shall not be bound to grant a decree unless it is satisfied that there has not been connivance, collusion and so forth."—[OFFICIAL REPORT (Standing Committee A) 9th February, 1937, Col. 314.]

It would seem to follow that there must necessarily be a reference of every case that comes before the courts to the King's Proctor before the decree nisi is granted. Added to that there will be the anxiety and strain of six months during which still more inquiries can be made if it is found necessary that they should be made. With the decree nisi retained this transfer seems to be totally unnecessary. The hon. Member for Oxford University (Mr. Herbert) envisaged this point in Committee and said:
I did think that in the course of a hearing if the judge smelt anything fishy he might adjourn the hearing in order to give the King's Proctor an opportunity to make inquiries.
Under this Clause 4 the Judge will be more or less compelled to do that whether he smells anything fishy or not, and it means, therefore, that virtually there is a reference to the King's Proctor. Therefore, if the decree nisi is retained this rather negative Clause as I choose to call it is not any longer necessary. I should like to read a short extract from a letter which I received this morning from a well-known solicitor with a considerable practice in divorce cases written I have no doubt on behalf of himself and other members of the profession:
There is great opposition to the entire alteration of the law by Clause 4 which in the opinion of everybody is entirely wrong.
That is, in his opinion, I presume:
In the first place, you cannot prove a negative, and secondly it acts entirely contrary to the principle of English law in that you have to prove yourself innocent in order to obtain relief, instead of, as the law is now, that you have to be proved guilty in order not to obtain relief. It is unsatisfactory in practice, as you would not get uniformity in the decisions of the judges. One judge of a suspicious nature will be extremely difficult to satisfy and another will be very easy, and the result will be chaos, and the success of your petition will depend very much on which judge you come before.
I hope the House will see fit to omit this Clause.

Mr. Duggan: I beg to second the Amendment.

2.54 p.m.

Mr. Herbert: I will say only a few words on this Amendment, and I would remark, first, that it is refreshing to receive an attack from the other flank. We have had many attacks from those who say that we are plunging the country down the slippery slope of divorce, and now


we have an attack from those who say that we are making divorce practically impossible. I would point out that this is not a new Clause thrust in hastily at the last moment. When we considered the Amendment of Clause 3 in Committee it was found necessary, owing to a point of Order, to reintroduce that Clause as a new Clause at the end of the Committee stage. I will not say more, however, because I am very anxious that the hon. Member for Ashford (Mr. Spells), who does understand this technical subject, shall have an opportunity of satisfying, I hope, the objections of the hon. Member.

2.55 p.m.

Mr. Spens: I was responsible for approving and not for drafting the Clause. I would like to explain to the House what is the law at present, and what the change in the law will be. I cannot agree that there would be different judgments under this Clause so that the judges could deal with any case as they thought fit. As I understand the application of the present law, it is that the practitioner has, first of all, to prove the grounds for divorce, and then, if there is a suspicion or suggestion of collusion—

Sir J. Withers: May I point out that the petitioner has to swear that there is no collusion with the other side?

Mr. Spens: If the hon. Gentleman would allow me to do so, I would say that I was going to get to that point. Let us start from the beginning. First, the petitioner not only has to lodge the grounds of divorce, but also to swear that there is no collusion. The case then comes on. The petitioner has to prove the grounds of divorce. If, in the course of the evidence, there is a suggestion of collusion, the court strictly, under the law as it is at present, has very limited powers indeed to deal with that matter, unless the evidence amounts to legal proof of collusion. That is the present position under the law as it is now worded, and that is the difficulty in which the judges of the divorce court find themselves today. If they find that the grounds of divorce are amply proved, but something in the evidence—it may be some casual remark—suggests that there is collusion, that is still far short of legal proof.
The object of this Clause is to deal with that kind of case, the kind which is

known to the layman as the faked case, and the one which causes all the scandal about the administration of our laws. Although in the first instance there is no complete legal proof of collusion, the judge in such a case as that will be able to say that he is not satisfied that there has not been collusion. That will give the court just the power which it requires at the present time to deal with these faked collusive cases, to direct further inquiries or to require further evidence.
It is now suggested that the Clause will give a discretion to each judge, but I do not think it will do so. If the hon. Member for South East St. Pancras (Sir A. Beit) will read Sub-section (2) he will see that it says:
If the court is satisfied on the evidence,
and that there has, therefore, to be something in the evidence. It is not to be something which the judge knows from outside parties, or anything of that sort. If there is nothing in the evidence which puts the court on suspicion, the case will go through exactly as it would do at the present time; otherwise the court will be able to exercise the power which it does not possess at the present time, and there will be some chance of stopping the greater number of faked divorce cases such as are going through now and causing so much scandal. That is all that the Clause does. Judges, knowing the wording of the present law, have no right to resist a decree unless there is conclusive evidence of collusion. For these reasons, I hope that the House will not accept the proposed Amendment.

3.0 p.m.

Sir J. Withers: With very great respect, I have to differ from my hon. and learned Friend the Member for Ashford (Mr. Spens). I think the Clause is quite unnecessary. I will read to the House the existing law on this subject from Section 178 of the Supreme Court of Judicature (Consolidation) Act, 1925,
On a petition for divorce it shall be the duty of the court to satisfy itself so far as it reasonably can both as to the facts alleged and also to whether the petitioner has been accessory to or has connived at or condoned the adultery"—
on which the petition is presented.
It goes on to amplify that provision. It is a matter of machinery every time. If the judges chose to exercise their powers


under that Section, they could get the whole of the facts without any trouble whatsoever. Unless the petitioner is to have the trouble of going into this matter again, and being subjected to actual proof, I do not see how it is going to be done because you cannot prove a negative. It is easy to leave the matter as it is. Nobody can object.

Mr. Crossley: Is that not tantamount to saying that at the present time there is not a considerable amount of collusion going on and escaping the notice of the judges?

Sir J. Withers: Certainly there is collusion, but the judges have the power to inquire into it now. Why do they not find out?

Mr. Crossley: Is not the point, not that the judges have the power to inquire, but that in this case the judges have the power to make the petitioner say, "I can prove it." That is quite a different thing.

3.3 p.m.

Mr. H. Strauss: I am bound to differ a little from my hon. and learned Friend the Member for Ashford (Mr. Spells). The Clause says:
If the court is satisfied on the evidence that"—
I will now read paragraph (iii):
the petition is not presented or prosecuted in collusion with the respondents or either of the respondents;
the court shall pronounce a decree of divorce, but"—
it goes on to say:
if the court is not satisfied with respect to any of the aforesaid matters it shall dismiss the petition.
It seems to me that the petitioner is put under the burden of proving a negative. It is said that he has to prove that the petition is not presented or prosecuted in collusion. I do not see how he is to prove a negative. It is then laid down that if the court is not satisfied with the proof of a negative, it shall dismiss the petition. This may impose a serious injustice. I do not think that it is a practical proposal to omit the Clause altogether; but the raising of this matter now will give an indication to another place that there are points of drafting in this Clause which many hon. Members feel emphatically ought to be put right.

3.5 p.m.

Sir A. Beit: I do not feel entirely satisfied with the explanation given by my hon. and learned Friend the Member for Ashford (Mr. Spens), but I do not want to divide the House on this point, especially as my own Amendment was not quite correctly drawn. I very much hope, however, that the matter will be considered again in another place, because I agree with my hon. and learned Friend that it is desirable that these cases should be dealt with. Where a judge is not satisfied with the evidence, and it is necessary to inquire into that evidence, that means, practically speaking, that the evidence has to be given to the King's Proctor, and if in a doubtful case the King's Proctor is going to make inquiries before the decree nisi is given, either there is no necessity for an interval of six months before the decree is made absolute, or, alternatively, the part of the Clause dealing with this matter is not necessary. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

CLAUSE 5.—(Decree of judicial separation.)

3.7 p.m.

Sir A. Beit: I beg to move, in page 4, line 7, after "presented," to insert:
or failure to comply with a decree for the restitution of conjugal rights.
Not only has the Bill been modified and watered down, but it appears from Clause 5 that the existing law relating to judicial separation, apart from divorce, has been adversely modified. The present law, I understand, is that a judicial separation is granted after two years' desertion or in case of failure to comply with a decree for the restitution of conjugal rights. Proceedings for such restitution can be, and often are, instituted by the deserted party soon after the act of desertion, mainly because, in the case of the wife, it is her only hope, apart from police court orders for maintenance, of getting alimony, and, when it is converted, as it can be under the existing law, into a judicial separation, it is the only hope of getting custody of the children. The Clause as it stands not only increases the two-years period of desertion to three years, but omits any reference to restitution of conjugal rights,


thus in our opinion doing away with a very valuable method of redress, since, as I have said, it is only by seeking a decree of restitution that the aggrieved party can claim custody of the children on that decree being converted into a judicial separation. If I am right in what I have said, I very much hope that the House will see its way to insert this Amendment.

Mr. Duggan: I beg to second the Amendment.

3.9 p.m.

Mr. Herbert: It is true that by this Clause, in the course of the general tidying up which we hope the Bill will do, the period for judicial separation on the ground of desertion is increased from two years to three years. There are two principles in the Bill. One is to provide divorce in proper cases, and the other is to encourage wherever it is possible the element of conciliation and delay. I gather that what is really worrying my hon. Friend is the position with regard to the ancient remedy of the decree for restitution of conjugal rights. That is really an anachronism, and I think it is agreed by expert lawyers that it should be abolished. The position is that it will remain as the result of this Bill, although, as my hon. Friend rightly says, it will not be employable as a means of getting a judicial separation for desertion. It will, however, be available to a wife who has not yet been deserted for the qualifying period. I think my hon. Friend is wrong in saying that, upon a decree for restitution, there is no means of dealing with the children as he will see if he looks at Subsection (2) of Section 193 of the principal Act.

Amendment, by leave, withdrawn.

3.11 p.m.

Sir Patrick Hannon: I beg to move, in page 4, to leave out lines 18 to 37.
This Clause was the subject of prolonged discussion in Committee, and the promoters of the Bill were extremely kind and considerate to those of us who were very much concerned for the future relationship which must subsist between the summary jurisdiction courts and the higher courts. When you provide in a Measure of this kind that evidence taken in courts of summary jurisdiction is to be used in divorce proceedings in a higher court, or even in an Assize court which

deals with divorce cases, the House ought to travel warily and cautiously, and take every means that can be devised to prevent any abuse or misinterpretation in the presentment of evidence of that kind in the higher court. When you embody in the Bill, as set forth in Sub-section (2, a), conditions for the acceptance of evidence given in proceedings in a summary court of jurisdiction without alleging any further grounds, the House must be extremely careful before it consents to legislation of that nature. The hon. Member for Oxford University (Mr. Herbert) has frequently pointed out that the proviso to some extent provides a safeguard, but I do not think it does, and this would be a better Measure if the Sub-section and its proviso were removed.
I am the last person in the world to suggest that we should not provide ample facilities for poorer people to have the fullest measure of justice in the administration of the laws, but I think in this case we are opening the door far too widely to the opportunities of divorce. I stand by the fundamental principle of maintaining the unity of family life, and I believe that this Sub-section does, in fact, strike a severe blow at the possibilities of conciliation, the possibilities of restoring friendship and family unity again to persons who are the parties to a divorce. I urge upon the House before it commits itself to the approval of this Sub-section to have more definitely before it how precisely cases of judicial separation in the courts of summary jurisdiction are to be made the basis of judicial proceedings and of divorces in the divorce courts. I feel so strongly on this point that I shall be bound to divide the House on my Amendment.

3.16 p.m.

Mr. Crossley: I beg to second the Amendment.
The House will realise that this Clause is directly consequent on the passing of Clause 1, which frankly I welcome. In addition to that, it has a provision which seeks to make the law cheap, and especially for poor persons. Nevertheless, I feel bound to support my hon. Friend in this Amendment. Let the House consider what it is doing. It is placing upon the magistrates, upon J.P.'s, upon anybody who can grant a separation order in the country at present, an altogether new and onerous duty. They will be


burdened with the doubt, present all the time in their minds, whether what they are doing in 1937 will not in the year 1940 be made the cause of divorce. In my submission the proviso does not, in fact, safeguard our case. There are no depositions, no shorthand notes in a magistrates' court. There is no means by which anybody in the High Court can look over and supervise the evidence which was given before the court of summary jurisdiction, and so far as I can ascertain there is nothing to invoke inquiry in any particular case by the High Court. The proviso, therefore, seems to me inadequate, and we are putting on local Benches a task which, although their work is a fine work and on the whole they do it very well, is not the work for which they are in fact competent.

3.19 p.m.

Mr. Herbert: I perhaps might assist the House if I observe that, although we are discussing the deletion of these words, I think we are discussing in fact the words of the Amendment which stands in the name of the hon. and learned Member for Ashford (Mr. Spens) and myself, and which we propose to substitute for most of these words. It is only a matter of drafting. This Clause was subjected to a great deal of discussion in Committee, and I thank the hon. Member for the Moseley Division (Sir P. Hannon) for acknowledging that the untidiness of the Clause in its present form is due to the fact that we have tried to meet the Catholics.

Sir P. Hannon: I was not speaking for the Catholics but for 7,000 members of the Women's Union of the City of of Birmingham.

Mr. Herbert: The Clause is very important because it is essential for the working of Clause 1. If adultery occurs in the second year of the marriage it might be very difficult sometimes in the sixth year to prove it, and, therefore, we propose that if a separation order has been granted on grounds constituting grounds for divorce, it may be used as the foundation for a divorce later on, but not automatically, in accordance with the terms of Sub-section (2, a). The purpose of the Sub-section is to carry out an important principle, and that is to encourage conciliation and delay wherever possible. We are against judicial separation as a permanent state of life.

It is a good thing for a short period in order to give opportunity for conciliation, but we do not want people who might desire to get a divorce to be prejudiced by the fact that they chose in the first instance to go for a separation. The main charge against the Clause is that of magistrates granting separation orders which may be made into decrees of divorce later on. My position is that if there are benefits to the community in the Clause, and I think there are, any proposal to confine them to the High Court would be a species of class legislation which I should be very sorry to see. I hope the House will agree that it is not a great danger to the State to give to those whose lives in these respects are governed by the magistrates, the same kind of advantages as are granted to those who go to the High Court. I do not know that I have been coherent in my explanation, because it is a difficult matter.

3.24 p.m.

Mr. Spens: As regards the Clause in the form in which it stands on the Order Paper, owing to Amendments accepted in Committee it does not carry out our intention, but with an Amendment which is to be proposed later on I hope that the House will accept the Clause. It does not, in my view, really add any very serious new grounds of divorce or means of getting divorce. Let me briefly give the history of the Clause. We objected to the original Clause because it provided that if there had been a judicial separation or a separation order on any of the grounds constituting grounds for divorce, then at the end of three years there was machinery to turn that order into divorce. That was strongly objected to and the promoters have accepted a proposal that, instead of it being an automatic process, the person wanting a divorce will have to present a petition for divorce in exactly the same way as if he or she was proceeding for the first time.
Under the Clause the fact that he had got an order three years ago need be the only matter which a poor petitioner may allege in the first instance, and he could go to the court alleging the order he had three years before and the court, if it thought fit, could accept that as evidence of ground for divorce, subject to certain safeguards, that there had been no cohabitation in the meantime, or collusion or connivance. In the second place—


and this is the important part—the court can require on the hearing of the petition additional evidence as to the grounds of divorce in exactly the same way as if it were dealing with the divorce petition for the first time. It does not give any new grounds for divorce, but it does in certain instances give a poor petitioner who has had an order granted by a magistrate for judicial separation a little assistance in getting his petition through on evidence relating to the order. I do not think that it will affect many cases. This is really machinery and effects nothing new. It is, in my view, a proposal which the House can accept safely. It only makes it cheaper for poor persons to get divorce than would otherwise be the case.

3.27 p.m.

Viscount Wolmer: The hon. and learned Member for Ashford (Mr. Spens) has not addressed himself to one fear which I know is present in the minds of many people who are opposed to the Bill, and that is that these words will add very much to collusion. It seems to me that anyone who desires to avoid publicity will be able to get an order in a police court in circumstances in which the matter might not be reported at all, and after the three years such an order could be made into a divorce. When the hon. and learned Member says that he does not think there will be many people affected, because they will not be inclined to wait that period of time, I am not sure that I agree with him. Undoubtedly publicity in these matters is a great deterrent, and we had an instance of this, when the House some years ago passed a Bill, a very excellent Bill, which, however, led to a great increase in the number of divorces because people thought there would be less publicity. From that point of view this proposal may also add to the number of divorce cases, and it may be the means by which something in the nature of collusive actions can be taken.
There is a question I would like to ask my hon. and learned Friend the Member for Ashford or the Solicitor-General. In Clause 4 there is imposed on the court the very necessary duty of satisfying itself that there is no collusion. Would the magistrates' court have the same legal duty, the same opportunity and the same powers of doing so as are conferred on the High Court by Clause 4? I would

like to have an assurance on that matter, because as I read these two Sub-sections, the decision of the magistrate is to be taken as proof of certain facts. If the magistrate has not the same opportunity of inquiring into those facts and of satisfying himself that there is no collusion, then it appears to be a dangerous point. Moreover, there is no official shorthand report of police court cases. That is a matter of very great importance. It will be impossible for the High Court to have anything before it except the bare decision of the magistrates and such newspaper reports as it may be able to collect.

The Solicitor-General: The clerk takes a note.

Viscount Wolmer: There is no shorthand report. I ask the Solicitor-General whether it is the intention that more complete notes should be kept in this respect?

The Solicitor-General: I am afraid the Government would have to consider very carefully what the consequences would be if the whole of this Bill became the law.

Viscount Wolmer: I think these two Sub-sections ought not to be passed light-heartedly. Time and again the promoters of the Bill have assured us that they do not wish to make divorce easier, and to increase the number of divorces. I believe that we have here a wide loophole under which publicity could be avoided, and collusion might be practised; and that it is one of the things which might lead to a very great number of easily-obtained divorces. We have to remember that the passing of an Act of Parliament frequently has unexpected results, and in a matter of this sort, which no Government likes to handle and which therefore has to be dealt with by private Members, it is very difficult to get speedy amendment if we make any mistake. I think my hon. Friend the Member for Oxford University (Mr. Herbert) will bear me out on that point. That is the danger of trying to deal with the whole of the Report stage in half a day.
The Mothers' Union—[Laughter.] I am not in the least ashamed of quoting the Mothers' Union in this connection. It is a thoroughly representative body containing some very able women who have devoted an enormous amount of time to the study of this question. The opinion of the Mothers' Union on this


matter ought to be received with respect and not with laughter. The Mothers' Union has devoted an enormous amount of time to the study of this question. Women are particularly concerned to see that divorce is not made too easy in these days. I was always a supporter of women's franchise, and one of my reasons was that I felt that women's opinion on the question of divorce was very important. I think the Mothers' Union, whether you agree with them or not, have made a valuable contribution to the discussion of this matter, and have given an enormous amount of trouble and ability to its consideration. They are much concerned with these two Subsections and therefore, unless we have an assurance from the Solicitor-General or the promoters of the Bill, that those fears which I have endeavoured to express are not likely to be justified, I shall certainly vote with my hon. Friends on this Amendment.

3.37 p.m.

Mr. Crowder: I agree with the Noble Lord about the great work done by the Mothers' Union to uphold the sanctity of married life in this country. They have stood by their ideals while a good many other people in this country have not done so but have wobbled and have told us that we may do this or that. But the Union have gone straight out, from the beginning, to uphold their ideals. I do not see that the Poor Persons' Act has anything to do with this Bill. I would not support any Amendment which would differentiate between poor persons and others, but this is not the place in which to deal with that matter. If the law is to be altered to deal more adequately with poor persons, it is a matter for the Government and not for a Marriage Bill or Divorce Bill. It seems that the King's Proctor cannot be called in by the magistrates when they are dealing with applications for separations, and therefore a separation case may come up later, to be made into a divorce without the King's Proctor ever having inquired into it.
I suggest that this Clause may open the door, not only to more divorces but to other undesirable developments such as divorce almost by consent. If in 1940, say, a judge granted a decree of judicial separation to a wife on the ground of constructive cruelty in an undefended case, in 1943 that wife could ask that the judicial separation should be converted

into a decree of divorce. If another judge hears the case then, is it to be suggested that he is likely to constitute himself a court of appeal from the first judge, or will he hear all the evidence again? He is much more likely to take the evidence which is already available and grant the decree straight away. Separation orders, having the full effect of judicial separations, are made much too lightly in courts of summary jurisdiction in cases of desertion and wilful neglect. If we are to allow those orders which have been so easily granted in the magistrates' courts, to be turned into divorces after three years, we are indeed opening the floodgates. The fact that magistrates' courts do grant these judicial separations too easily, has often been commented on in the divisional courts. Therefore, I support the Amendment.

Lieut.-Commander Agnew: Lieut.-Commander Agnew rose—

Hon. Members: Divide.

3.40 p.m.

Lieut.-Commander Agnew: I do not desire to detain the House unduly and I am aware that our sitting must end at Four o'clock, but I am also aware that the subject which we are discussing is of vital importance and I think the promoters of the Bill will agree that there has been no obstruction this afternoon on the part of those opposed to the Bill. But, of course, we are considering a particular Amendment, and it is far better that that Amendment should be given proper consideration than that a speech should be attempted with interruptions as to whether or not there is obstruction. First of all, I must say something about the last line of the words which it is desired to leave out. If hon. Members will look at the Bill they will see at the end of the proviso that the court may require evidence, other than the original evidence, on which the decree was originally got in the lower court, and that if it is not satisfied with that evidence, the court "may" dismiss the petition. I have a fundamental objection to these words staying as they are, because if the court is not satisfied with the evidence that is tendered to it, not only should it have the power to dismiss the petition, but it ought to have a positive order or mandate to dismiss the petition. The words should be "the court shall dismiss the petition."
Far more important than that is to do what not only the promoters desire, but what I think we must all desire, and that is to bring the resources of the law of divorce, like other laws, within reach of all those people who cannot afford at any time to go to the High Court. We certainly desire that they shall have the benefit of litigation available to them, although they cannot afford to go to the High Court. Is this the best way to do it? I submit that it is not. The best way is surely that which was, after mature consideration, recommended by the Majority Report of the Royal Commission. They considered this question of whether magistrates' courts should have the power to grant decrees for divorce under any exceptional system, and they came to the conclusion that with the best will in the world the magistrates' courts were not equipped by their very nature to carry out the extra and serious burdens

that would be imposed upon them. But those who supported the Majority Report did not leave the whole question in that purely negative state. They made a positive suggestion; they recommended that in the county courts the judges should, if necessary, be appointed commissioners of assize and that petitioners could go to them and obtain a proper and efficient hearing of their suits for divorce. No one desires to stop the increase of divorce which will arise under this Bill soley because a large part of it will be among poor people who, up to now, have not been able to get divorce at all. What we do want is to give these people the most efficient litigation, to which they are entitled as much as any other people in the land.

Question put, "That the words proposed to be left out, to the word 'on,' in line 21, stand part of the Bill."

The House divided: Ayes, 166; Noes, 45.

Division No. 144.]
AYES.
[3.45 p.m.


Acland, Rt. Hon. Sir F. Dyke
Dower, Capt. A. V. G.
Margesson, Capt. Rt. Hon. H. D. R.


Acland, R. T. D. (Barnstaple)
Duckworth, Arthur (Shrewsbury)
Markham, S. F.


Adams, S. V. T. (Leeds, W.)
Duggan, H. J.
Mathers, G.


Adamson, W. M.
Ede, J. C.
Maxton, J.


Alexander, Rt. Hon. A. V. (H'lsbr.)
Elmley, Viscount
Maxwell, Hon. S. A.


Allen, Lt.-Col. J. Sandeman (B'kn'hd)
Entwistle, Sir C. F.
Mellor, Sir J. S. P. (Tamworth)


Ammon, C. G.
Fildes, Sir H.
Messer, F.


Apsley, Lord
Fletcher, Lt.-Comdr. R. T. H.
Mills, Major J. D. (New Forest)


Astor, Viscountess (Plymouth, Sutton)
Foot, D. M.
Montague, F.


Astor, Hon. W. W. (Fulham, E.)
Frankel, D.
Moore, Lieut.-Col. T. C. R.


Attlee, Rt. Hon. C. R.
George, Rt. Hon. D. Lloyd (Carn'v'n)
Morgan, R. H.


Balfour, Capt. H. H. (Isle of Thanet)
George, Major G. Lloyd (Pembroke)
Morrison, G. A. (Scottish Univ's.)


Barr, J.
Gibson, R. (Greenock)
Morrison, R. C. (Tottenham, N.)


Batey, J.
Green, W. H. (Deptford)
Muff, G.


Baxter, A. Beverley
Gridley, Sir A. B.
Naylor, T. E.


Beamish, Rear-Admiral T. P. H.
Groves, T. E.
Nicholson, G. (Farnham)


Beaumont, Hon. R. E. B. (Portsm'h)
Harris, Sir P. A.
Noel-Baker, P. J.


Beit, Sir A. L.
Harvey, T. E. (Eng. Univ's.)
O'Connor, Sir Terence J.


Bellenger, F. J.
Haslam, H. C. (Horncastle)
Oliver, G. H.


Bevan, A.
Henderson, T. (Tradeston)
O'Neill, Major Rt. Hon. Sir Hugh


Blair, Sir R.
Herbert, Capt. Sir S. (Abbey)
Paling, W.


Blaker, Sir R.
Hills, Major Rt. Hon. J. W. (Ripon)
Parker, J.


Bowyer, Capt. Sir G. E. W.
Hollins, A.
Penny, Sir G.


Bracken, B.
Hopkin, D.
Perkins, W. R. D.


Braithwaite, Major A. N.
James, Wing-Commander A. W. H.
Petherick, M.


Broad, F. A.
Jenkins, Sir W. (Neath)
Pethick-Lawrence, F. W.


Brown, C. (Mansfield)
Jones, A. C. (Shipley)
Pickthorn, K. W. M.


Campbell, Sir E. T.
Jones, Morgan (Caerphilly)
Ponsonby, Col. C. E.


Cassells, T.
Kennedy, Rt. Hon. T.
Potts, J.


Cazalet, Thelma (Islington, E.)
Knox, Major-General Sir A. W. F.
Pritt, D. N.


Cazalet, Capt. V. A. (Chippenham)
Latham, Sir P.
Quibell, D. J. K.


Channon, H.
Leach, W.
Ridley, G.


Charleton, H. C.
Leckie, J. A.
Ropner, Colonel L.


Chater, D.
Lee, F.
Rowson, G.


Clarke, Lt.-Col. R. S. (E. Grinstead)
Lewis, O.
Russell, A. West (Tynemouth)


Cluse, W. S.
Mabane, W. (Huddersfield)
Salmon, Sir I.


Cocks, F. S.
McCorquodale, M. S.
Salter, Sir J. Arthur (Oxford U.)


Cooke, J. D. (Hammersmith, S.)
Macdonald, G. (Ince)
Sanders, W. S.


Croft, Brig.-Gen. Sir H. Page
Macdonald, Capt. P. (Isle of Wight)
Sanderson, Sir F. B.


Cruddas, Col. B.
McEntee, V. La T.
Selley, H. R.


Dalton, H.
McGhee, H. G.
Shaw, Captain W. T. (Forfar)


Davison, Sir W. H.
Macnamara, Capt. J. R. J.
Shepperson, Sir E. W.


Day, H.
MacNeill, Weir, L.
Silkin, L.


Denman, Hon. R. D.
Macquisten, F. A.
Simpson, F. B.


Dobbie, W.
Makins, Brig.-Gen. E.
Smiles, Lieut.-Colonel Sir W. D.


Doland, G. F.
Manningham-Buller, Sir M.
Smith, Ben (Rotherhithe)




Smith, E. (Stoke)
Thurtle, E.
Williams, T. (Don Valley)


Sorensen, R. W.
Touche, G. C.
Wilson, Lt.-Col. Sir A. T. (Hitchin)


Southby, Commander A. R. J.
Tufnell, Lieut.-Commander R. L.
Windsor, W. (Hull, C.)


Spears, Brigadier-General E. L.
Viant, S. P.
Wise, A. R.


Spens, W. P.
Walkden, A. G.
Withers, Sir J. J.


Strauss, G. R. (Lambeth, N.)
Wardlaw-Milne, Sir J. S.
Young, Sir R. (Newton)


Strauss, H. G. (Norwich)
Watkins, F. C.



Tate, Mavis C.
Watt, G. S. H.
TELLERS FOR THE AYES.—


Taylor, Vice-Adm. E. A. (Padd., S.)
Wayland, Sir W. A
Mr. De la Bère and Mr A. P.


Taylor, R. J. (Morpeth)
Whiteley, W.
Herbert.


Thorne, W.
Williams, H. G. (Croydon, S.)





NOES.


Baldwin-Webb, Col. J.
Grimston, R. V.
Ross Taylor, W. (Woodbridge)


Beaumont, M. W. (Aylesbury)
Gunston, Capt. D. W.
Seely, Sir H. M.


Bower, Comdr. R. T.
Hall, J. H. (Whitechapel)
Smith, Bracewell (Dulwich)


Brocklebank, C. E. R.
Heilgers, Captain F. F. A.
Strauss, E. A. (Southwark, N.)


Bullock, Capt. M.
Holmes, J. S.
Stuart, Lord C. Crichton- (N'thw'h)


Burton, Col. H. W.
Hurd, Sir P. A.
Sueter, Rear-Admiral Sir M. F.


Clarry, Sir Reginald
Kelly, W. T.
Tinker, J. J.


Crooke, J. S.
Llewellin, Lieut.-Col. J. J.
Ward, Lieut.-Col. Sir A. L. (Hull)


Crossley, A. C.
Lumley, Capt. L. R.
Ward, Irene M. B. (Wallsend)


Crowder, J. F. E.
McKie, J. H.
Waterhouse, Captain C.


Dawson, Sir P.
Mayhew, Lt.-Col. J.
Wells, S. R.


Denville, Alfred
Neven-Spence, Major B. H. H.
Williams, C. (Torquay)


Evans, Capt. A. (Cardiff, S.)
Orr-Ewing, I. L.
Wolmer, Rt. Hon. Viscount


Grant-Ferris, R.
Rankin, Sir R.



Grattan-Doyle, Sir N.
Rickards, G. W. (Skipton)
TELLERS FOR THE NOES.—


Greene, W. P. C. (Worcester)
Ritson, J.
Lieut.-Commander Agnew and




Sir Patrick Hannon.

Mr. Spens: I beg to move, in page 4, line 21, to leave out "on grounds constituting grounds for divorce."
This is purely a drafting Amendment, to enable subsequent Amendments to be made.

Mr. Herbert: I beg to second the Amendment.

3.53 p.m.

Viscount Wolmer: If I did not follow the eloquent speech of the hon. and learned Member for Ashford (Mr. Spens), I hope he will forgive me, but I did not hear a single argument in favour of the Amendment he has just moved. I understand that these words were inserted during the Committee stage in response to an Amendment moved by my hon. Friends which the promoters of the Bill accepted on the assurance that if these words were in they would meet a great deal of the objection of the opponents to the Clause.

Mr. Spens: This Amendment omits the words in line 21, and if my Noble Friend will read the consequential Amendments, he will kind that they are in subsequently not once, but twice.

Viscount Wolmer: If I did not properly apprehend the meaning of my hon. and learned Friend, he has only himself to thank because he did not favour the House with the slightest reason why he moved this Amendment. No doubt those who disagree with my hon. Friend are un-

usually dense, but certainly it has not been made clear. I want to have an assurance that the effect of carrying this Amendment is not in any way to broaden the scope of the Bill.

Mr. Herbert: I think I can give the Noble Lord the assurance for which he asks.

Hon Members: We cannot hear a word.

Amendment agreed to.

Mr. Spens: I beg to move, in page 4, line 25, to leave out from "the," to the end of the Clause, and to insert:
grounds on which the decree or order was granted constitute grounds for divorce under this Act, present a petition for divorce on those grounds; and in a case where the ground is desertion, any period of desertion immediately preceding the institution of the proceedings for the decree or order shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the petition for divorce.
On any such petition for divorce the court may treat the decree of judicial separation or the order having the effect thereof as sufficient evidence of the grounds on which it was granted, or may require further evidence of those grounds, and all powers of the court in relation to petitions for divorce shall be exercisable in relation to any such petition as aforesaid.

Mr. Herbert: I beg to second the Amendment.

3.58 p.m.

Viscount Wolmer: I wish to protest against the Report stage of an important Bill being treated in this way. Here we have a proposal to introduce a novel and complicated provision into this Clause.

Mr. Herbert: May I anticipate any objection on the part of the Noble Lord by saying—[HON. MEMBERS: "Speak up".] The effect of the words which we are now proposing to introduce into the Bill in place of the words to be deleted will be exactly the same.

Viscount Wolmer: What does my hon. Friend mean by saying that the effect of them will be exactly the same? He has not given us the least explanation of the effect of these new words, although he thinks it is necessary to substitute them for words which are already in his Bill. My hon. Friend must forgive me if I am careful about accepting his assurances on a matter of this sort, because although I am certain he does not wish to deceive the Committee, it must be remembered that he looks at this question in a very different way from many of us; and if I misinterpreted my hon. and learned Friend's intentions on the last Amendment, it was because he did not think it necessary to explain. I accept at once the assurance that the words as they were in the Clause before are covered by the Amendment which is now moved, but I did hope we should have some explanation, especially from my hon. and learned Friend the Member for Ashford (Mr. Spens), who is a lawyer, as to the effect of the Amendment. With the exception of half-an-hour I have listened to the

whole of this Debate, and I have not heard any explanation of the object of this new sub-section, or part of a subsection, which the promoters of the Bill are moving. Is it moved to meet a purely technical difficulty? Is its object to make the Bill wider or narrower? Is it to cover some case which had not been foreseen? I venture to say to the hon. Member for Oxford University (Mr. Herbert) that when he is piloting a Bill through this House it really would be as well to explain the provisions in such a way that even the densest person can understand them.

Commander Bower: Commander Bower rose—

It being Four of the Clock, the Debate stood adjourned.

Debate to be resumed upon Friday next.

Orders of the Day — METHYLATED SPIRITS (SCOTLAND) BILL.

As amended (in the Standing Committee) considered; read the Third time, and passed.

The remaining Order was read, and postponed.

Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.

Adjourned at One Minute after Four o'Clock until Monday next, 19th April.